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 2005DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Townsville
DELIVERED EX TEMPORE ON:
6 December 2006DELIVERED 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 madeORDER:
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 problems6. The period of 307 days from 15 November 2005 to 18
September 2006 is declared time already served under
the sentenceCATCHWORDS:
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…
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- AGLC
- R v Murray [2006] QCA 516
- Case
- [2006] QCA 516
- Decision Date
CaseChat Overview and Summary
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
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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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