R v Nuttall; Ex parte Attorney-General

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Nuttall; ex parte A-G (Qld) [2011] QCA 120

PARTIES:

R
v
NUTTALL, Gordon Richard
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 8 of 2011

DC No 187 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

7 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

10 May 2011

JUDGES:

Muir, Fraser and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The appeal be allowed.

2.   The sentences imposed, except for the perjury offences the subject of counts 11 to 15 on the indictment, be set aside.

3.   The respondent be sentenced to seven year terms of imprisonment for each of the offences of official corruption.

4.   Such sentences for corruption and perjury to be served concurrently with each other and cumulatively upon the sentences imposed on 17 July 2009.

5.   A new parole eligibility date of 17 July 2015 is fixed, being a date twelve months earlier than the mid point of fourteen years from the commencement of the sentences imposed on 17 July 2009.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent was sentenced to five years imprisonment for each of five counts of official corruption and two years imprisonment for each of five counts of perjury to be served cumulatively upon sentences of seven years imprisonment being imposed for each of 36 counts of corruption – where the respondent was a member of the Queensland Legislative Assembly – where the Attorney-General submitted that the sentence failed to adequately reflect the gravity of the offending and failed to sufficiently take into account general deterrence – where the Attorney-General submitted that the sentencing judge gave too much weight to mitigating factors and erred in applying the totality principle – where the respondent argued that the offences were not “within the worst category of cases” – where no sentencing guide was made available to the sentencing judge – whether the sentence was manifestly inadequate

Criminal Code 1899 (Qld), s 87, s 121(1), s 124, s 442B, s 669A(1)
Penalties and Sentences Act 1992 (Qld), s 9(2)(f)

Einfeld v R (2010) 266 ALR 598; [2010] NSWCCA 87, considered
Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49, considered
Hili v R (2010) 272 ALR 465; [2010] HCA 45, considered
Kenny v R [2010] NSWCCA 6, considered
Lacey v Attorney-General of Queensland (2011) 275 ALR 646; [2011] HCA 10, cited
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, considered
R v Chong; ex parte A-G (Qld) (2008) 181 A Crim R 200; [2008] QCA 22, cited
R v Clements (1993)…

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Details
Case
[2011] QCA 120
Decision Date

CaseChat Overview and Summary

In the case of R v Nuttall; Ex parte Attorney-General, the respondent, a former member of the Queensland Legislative Assembly, was convicted on multiple counts of official corruption and perjury. The sentencing resulted in five years imprisonment for each of five counts of official corruption and two years imprisonment for each of five counts of perjury, to be served cumulatively with seven-year sentences imposed for each of 36 counts of corruption. The Attorney-General sought an appeal against the sentence, arguing that it failed to adequately reflect the gravity of the offending and did not sufficiently consider general deterrence. The Attorney-General further argued that the sentencing judge gave too much weight to mitigating factors and erred in applying the totality principle. The respondent contended that the offences were not within the worst category of cases, and that no sentencing guide was provided to the sentencing judge.

The court had to determine whether the sentence was manifestly inadequate and if the appeal against the sentence should be allowed. The appeal hinged on whether the sentence was excessively lenient given the nature and seriousness of the crimes committed. The court examined the principles of sentencing, the role of general deterrence, and the appropriate weight given to mitigating factors. The court also assessed whether the totality principle was correctly applied and whether the respondent's crimes warranted a more severe sentence.

The court found that the sentence was manifestly inadequate, considering the gravity of the crimes and the respondent's position of public trust. The court was critical of the sentencing judge for giving too much weight to mitigating factors and not adequately addressing the need for general deterrence. The appeal was allowed, and the sentences for the official corruption offences were set aside, except for the perjury offences of counts 11 to 15. The respondent was re-sentenced to seven years imprisonment for each of the official corruption offences, with these sentences to run concurrently with each other and cumulatively with the prior sentences. The court also fixed a new parole eligibility date of 17 July 2015, twelve months earlier than the midpoint of fourteen years from the commencement of the original sentences.

Orders

Orders of the court

1. The appeal be allowed.

2. The sentences imposed, except for the perjury offences the subject of counts 11 to 15 on the indictment, be set aside.

3. The respondent be sentenced to seven year terms of imprisonment for each of the offences of official corruption.

4. Such sentences for corruption and perjury to be served concurrently with each other and cumulatively upon the sentences imposed on 17 July 2009.

5. A new parole eligibility date of 17 July 2015 is fixed, being a date twelve months earlier than the mid point of fourteen years from the commencement of the sentences imposed on 17 July 2009.

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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