SUPREME COURT OF QUEENSLAND
CITATION:
R v Rooney; R v Gehringer [2016] QCA 48
PARTIES:
In Appeal No 93 of 2015
R
v
ROONEY, Michael Robert
(applicant)In Appeal No 94 of 2015
R
v
GEHRINGER, Belinda Jane
(applicant)FILE NO/S:
CA No 93 of 2015
CA No 94 of 2015
SC No 621 of 2013DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
Supreme Court at Brisbane – Date of Sentence: 14 May 2015DELIVERED ON:
4 March 2016
DELIVERED AT:
Brisbane
HEARING DATE:
16 September 2015
JUDGES:
Fraser and Gotterson JJA and McMeekin J
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
Each application for leave to appeal against sentence is refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where Rooney was sentenced to seven years imprisonment for trafficking in methylamphetamine and cannabis and Gehringer was sentenced to five years imprisonment for the same offences – where the applicants allege that the sentencing judge erred in failing to accord sufficient weight to the pleas of guilty in determining their sentences – where the applicants entered late pleas of guilty – where the applicants contested their sentences unnecessarily – where the pleas did not reflect remorse – where the pleas were of limited utilitarian value – where the sentencing judge expressly allowed some credit because of the applicants’ guilty pleas – whether the sentencing judge erred in the exercise of the sentencing discretion
Penalties and Sentences Act 1992 (Qld), s 13, s 160C(5)
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, considered
R v Hoad [2005] QCA 92, considered
R v McQuire & Porter (No 2) (2000) 110 A Crim R 348; [2000] QCA 40, cited
R v Robertson (2008) 185 A Crim R 441 [2008] QCA 164, considered
R v Ruha, Ruha & Harris; Ex parte Director of Public Prosecutions (Cth) [2011] 2 Qd R 456; [2010] QCA 10, considered
R v Ungvari [2010] QCA 134, consideredCOUNSEL:
M J Copley QC, with S G Bain, for the applicants
M T Whitbread for the respondentSOLICITORS:
AW Bale for the applicants
Director of Public Prosecutions (Queensland) for the respondent
FRASER JA: The applicants Rooney and Gehringer have each applied for leave to appeal against sentences imposed in the Trial Division. For trafficking in methylamphetamine and cannabis between 31 December 2011 and 17 January 2013 (count 1), Rooney was sentenced to seven years imprisonment and Gehringer was sentenced to five years imprisonment. In respect of each applicant, convictions were recorded and no further punishment was imposed for possession of methylamphetamine exceeding two grams (count 2), possession of cannabis exceeding 500 grams (count 3), possessing a thing used in connection with trafficking in a dangerous drug (count 5), and possessing property obtained from trafficking (count 6). The applicants were sentenced to a concurrent term of imprisonment of…
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- Case
- [2016] QCA 48
- Decision Date
CaseChat Overview and Summary
The court found that the sentencing judge had correctly acknowledged the applicants' pleas of guilty as mitigating factors, in compliance with statutory requirements and judicial precedents. Despite the lateness and lack of remorse in the pleas, the judge had reduced the starting point for the sentences by six months, reflecting the applicants' guilty pleas. The court held that the judge exercised their discretion appropriately and did not make an error in the sentencing process. The applicants' argument that the sentences should reflect a parole eligibility date after one-third of the term was not supported by the circumstances of the case, as there were no substantial mitigating factors present.
The court's reasoning led to the conclusion that the applicants' appeal against their sentences was without merit. The sentencing judge had considered all relevant factors, including the mitigating effect of the pleas of guilty, and exercised their discretion correctly. The court's decision was based on the principles of conventional sentencing and the particular circumstances of each case.
The final orders of the court were that each application for leave to appeal against sentence was refused.
Orders
Orders of the court
Each application for leave to appeal against sentence is refused.
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
The respondent also submitted that the sentences proposed by the applicants did not take into account that the sentencing judge had reduced an appropriate starting point for each head sentence by six months and, particularly in that context, the mitigating factors did not justify a parole eligibility date for either applicant after only one third of the term.Consideration The sentencing judge expressly took the pleas of guilty into account and made that clear, in compliance with s 13 of the Penalties and Sentences Act 1992, and the sentencing judge exercised the discretion to reduce the sentence imposed on account of the guilty pleas. The sentencing judge acted in accordance with principle by recognising that the pleas of guilty were mitigating factors in each case, notwithstanding that they were late and not accompanied by remorse.[4] Nothing in the sentencing judge’s remarks suggests that the utilitarian value of the guilty pleas was not taken into account in either sentence.[5] It is clear that it was taken into account.[4]R v McQuire & Porter (No 2) (2000) 110 A Crim R 348 at [89] (McMurdo P) and [109] (Byrne SJA).[5]Cf R v Clark [2009] QCA 361 at [25] (Keane JA). In the course of argument the applicants invoked the “common sentencing practice in Queensland”, to which Jerrard JA referred in R v Hoad,[6] of making provision for parole or suspension of imprisonment after approximately one third of the head sentence has been served. However, Jerrard JA referred to Ms Hoad having pleaded guilty to an ex officio indictment, having not been responsible for the delay in the matter proceeding in the District Court, having indicated her preparedness to plead at her first appearance, having demonstrated genuine remorse, and having made full and frank admissions to police at the scene of the offence (dangerous operation of a motor vehicle causing death while adversely affected by an intoxicating substance).[7] Jerrard JA observed that “[t]hose matters in mitigation would ordinarily have resulted in Ms Hoad receiving either a recommendation for consideration for early post-prison community based release, or a suspension of her sentence, after approximately one third had been served”, and “[t]hat would accord with common sentencing practice in Queensland.”[8] In this case neither applicant could rely upon such substantial mitigating factors. Furthermore, Jerrard JA’s reference to what the result for Ms Hoad “ordinarily” would have been and the reference to a “common sentencing practice” makes it plain that a departure from that practice does not of itself necessarily evidence any error justifying appellate interference.[6][2005] QCA 92 at [31].[7][2005] QCA 92 at [30].[8][2005] QCA 92 at [31] (emphasis added). The applicants relied upon R v Ungvari,[9] in which White JA referred to the one third mark as being seen as “an appropriate starting point” to recognise a plea of guilty as “a matter of general practice”, and that it might be “adjusted up or down as the particular circumstances warrant”. The second proposition is arguably difficult to reconcile with the approval in Hili v The Queen[10] of this Court’s decision in R v Ruha, Ruha & Harris; Ex parte Director of Public Prosecutions (Cth)[11] that the proportion which the pre-release period bears to a sentence of imprisonment “should themselves be the results of application of conventional sentencing principles to the particular circumstances of each case: the appellant’s argument inverts that proper approach by requiring that the sentence in a particular case be substantially dictated by a pre-determined range unless there are unusual factors”. A similar point was made in passage in R v Robertson[12] which was cited in R v Ruha:[13]“To the extent that decisions establish ranges within which sentences are regularly imposed for similar offending, it is of course right to take them into account, but in the end the proportion which the period to be served in prison bears to the whole term is to be fixed by taking into account all of the circumstances rather than by some rule of thumb. [Bugmy v The Queen (1990) 169 CLR 525 at 538.] The authorities do not condone, in any aspect of sentencing, some arithmetical approach under which a deduction is made from a pre-determined range of sentences: the sentencing judge is obliged ‘to take account all of the relevant factors and to arrive at a single result which takes due account of them all.’ [Wong v The Queen (2001) 207 CLR 584 at 74; [2001] HCA 64, approved in Markarian v The Queen (2005) 228 CLR 357 at [37]; [2005] HCA 25.]”[14][9][2010] QCA 134 at [30].[10][2010] HCA 45 at [42]-[44].[11][2010] QCA 10 at [47].[12][2008] QCA 164 at [6].[13][2010] QCA 10 at [26].[14]This passage does not concern decisions that “good reason” must be demonstrated before fixing as the parole eligibility date a point later than the mid-point of the term: see R v Robertson [2008] QCA 164 at [5], citing R v McDougall & Collas [2007] 2 Qd R 87; [2006] QCA 365 at [14], [21] and R v Assurson (2007) 174 A Crim R 78; [2007] QCA 273 at [22], [27] and [33]-[34]; and see also R v Kitson [2008] QCA 86 at [15], [16].