R v Murray - [2006] QCA 516

SUPREME COURT OF QUEENSLAND

CITATION:

R v Murray [2006] QCA 516

PARTIES:

R
v
MURRAY, Carl Graham
(applicant/appellant)

FILE NO/S:

CA No 291 of 2006
DC No 162 of 2006
DC No 390 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED EX TEMPORE ON:

6 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

6 December 2006

JUDGES:

McMurdo P, Williams JA and Helman J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for leave to appeal granted
2. Appeal allowed and sentences imposed at first instance
    set aside
3. Instead, for each count on the four-count indictment
    impose a sentence of two and a half years imprisonment
    to be suspended after 13 months with an operational
    period of three years
4. On the one-count indictment, impose a sentence of 12
    months imprisonment and three years probation on the
    usual terms and conditions in the Penalties and
    Sentences Act 1992 (Qld)
5. The applicant has consented to a probation order on
    these conditions including the special condition that the
    applicant receive medical, psychiatric and
    psychological treatment including treatment for sexual
    abuse problems

6. The period of 307 days from 15 November 2005 to 18
    September 2006 is declared time already served under
    the sentence

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant pleaded guilty to four counts on one indictment charging him with indecent dealing with children under 12 in his care – where applicant also pleaded guilty to one count on another indictment charging him with indecent treatment of a child under 12 – where trial judge sentenced applicant on each count to three years imprisonment – where judge stated that he took 309 days of pre-sentence custody into account in setting parole eligibility date but did not make any declaration that pre-sentence custody was time already served – where applicant now contends that sentence was manifestly excessive and failed to take into account his pre-sentence custody – whether in light of recent changes to the Penalties and Sentences Act 1992 (Qld) applicant's pre-sentence custody should have been taken into account when fixing a parole eligibility date and the head sentence – whether judge erred in dealing with the period of pre-sentence custody

Penalties and Sentences Act 1992 (Qld), s 92

R v Al Aiach [2006] QCA 157; CA No 93 of 2006, 12 May 2006, applied

R v C [1999] QCA 458; CA No 264 of 1999, 2 November 1999, applied

R v G [1994] QCA 86; CA No 10 of 1994, 12 April 1994, applied

R v Hood [2005] QCA 159; CA No 38 of 2005, 13 May 2005, applied

R v K [2003] QCA 521; CA No 290 of 2003, 20 November…

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 Murray

Details

AGLC: R v Murray [2006] QCA 516
Case: [2006] QCA 516
Decision Date: 6 December 2006

CaseChat Overview and Summary

The case of R v Murray involved the applicant appealing against his sentences imposed after he pleaded guilty to multiple charges of indecent dealing and treatment of children under his care. The Supreme Court of Queensland was tasked with reviewing the appeal, which centred on whether the trial judge had correctly accounted for the applicant's pre-sentence custody in setting the parole eligibility date and the overall sentence. The applicant argued that his sentences were manifestly excessive and that the trial judge had failed to take into account the 309 days he had already spent in custody before the sentencing.

The legal issues before the court were whether the trial judge had erred in not considering the applicant's pre-sentence custody when determining the parole eligibility date and the overall sentence, particularly in light of recent amendments to the Penalties and Sentences Act 1992 (Qld). The court had to determine if the trial judge's failure to declare the pre-sentence custody as time already served was a material error that warranted the sentences being set aside and re-imposed. The court also needed to consider whether the sentences were manifestly excessive, given the applicant's pre-sentence custody.

The Supreme Court found that the trial judge had indeed erred by not declaring the pre-sentence custody as time already served and in not taking this period into account when fixing the parole eligibility date and the head sentence. The court held that the sentences were manifestly excessive given the applicant's pre-sentence custody and the changes in the law that mandated such consideration. Consequently, the appeal was allowed, and the original sentences were set aside. The court re-imposed sentences that included suspended terms and probation, taking into account the pre-sentence custody and the applicant's consent to a probation order with specific conditions for treatment.

Orders

Orders of the court

1. Application for leave to appeal granted

2. Appeal allowed and sentences imposed at first instance

set aside

3. Instead, for each count on the four-count indictment

impose a sentence of two and a half years imprisonment

to be suspended after 13 months with an operational

period of three years

4. On the one-count indictment, impose a sentence of 12

months imprisonment and three years probation on the

usual terms and conditions in the Penalties and

Sentences Act 1992 (Qld)

5. The applicant has consented to a probation order on

these conditions including the special condition that the

applicant receive medical, psychiatric and

psychological treatment including treatment for sexual

abuse problems

6. The period of 307 days from 15 November 2005 to 18

September 2006 is 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Murray [2006] QCA 516
PARTIES:	R v MURRAY, Carl Graham (applicant/appellant)
FILE NO/S:	CA No 291 of 2006 DC No 162 of 2006 DC No 390 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED EX TEMPORE ON:	6 December 2006
DELIVERED AT:	Brisbane
HEARING DATE:	6 December 2006
JUDGES:	McMurdo P, Williams JA and Helman J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal granted 2. Appeal allowed and sentences imposed at first instance set aside 3. Instead, for each count on the four-count indictment impose a sentence of two and a half years imprisonment to be suspended after 13 months with an operational period of three years 4. On the one-count indictment, impose a sentence of 12 months imprisonment and three years probation on the usual terms and conditions in the Penalties and Sentences Act 1992 (Qld) 5. The applicant has consented to a probation order on these conditions including the special condition that the applicant receive medical, psychiatric and psychological treatment including treatment for sexual abuse problems 6. The period of 307 days from 15 November 2005 to 18 September 2006 is declared time already served under the sentence
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant pleaded guilty to four counts on one indictment charging him with indecent dealing with children under 12 in his care – where applicant also pleaded guilty to one count on another indictment charging him with indecent treatment of a child under 12 – where trial judge sentenced applicant on each count to three years imprisonment – where judge stated that he took 309 days of pre-sentence custody into account in setting parole eligibility date but did not make any declaration that pre-sentence custody was time already served – where applicant now contends that sentence was manifestly excessive and failed to take into account his pre-sentence custody – whether in light of recent changes to the Penalties and Sentences Act 1992 (Qld) applicant's pre-sentence custody should have been taken into account when fixing a parole eligibility date and the head sentence – whether judge erred in dealing with the period of pre-sentence custody Penalties and Sentences Act 1992 (Qld), s 92 R v Al Aiach [2006] QCA 157; CA No 93 of 2006, 12 May 2006, applied R v C [1999] QCA 458; CA No 264 of 1999, 2 November 1999, applied R v G [1994] QCA 86; CA No 10 of 1994, 12 April 1994, applied R v Hood [2005] QCA 159; CA No 38 of 2005, 13 May 2005, applied R v K [2003] QCA 521; CA No 290 of 2003, 20 November…