R v Shales - [2005] QCA 192

SUPREME COURT OF QUEENSLAND

CITATION:

R v Shales [2005] QCA 192

PARTIES:

R
v
SHALES, Leanne Myra
(applicant)

FILE NO/S:

CA No 62 of 2005
SC No 152 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

7 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

7 June 2005

JUDGES:

de Jersey CJ, McPherson and Keane JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

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 REFUSED – where applicant convicted on own plea of guilty to being an accessory after the fact to manslaughter – where sentenced to 18 months imprisonment - where applicant initially gave a false account to police – where applicant cooperated with police, but where this cooperation was entirely selfish and came very late – where prosecution thus lost the chance of presenting a cogent case against the primary offender – where applicant spent five and half months in pre-sentence custody – whether the sentence was manifestly excessive

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – IRRELEVANT FACTORS – TIME SPENT IN CUSTODY – where applicant had spent time in custody while subject to the charge of murder – where applicant was subsequently charged with being an accessory after the fact to manslaughter – whether a declaration under s 161 of the Penalties and Sentences Act 1992 (Qld) in relation to pre-sentence custody be made

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – MAXIMUM SENTENCE – GENERALLY – where the trial judge pointed to the inadequacy of the prescribed maximum under s 544 of the Criminal Code 1899 (Qld) – whether the trial judge was entitled to diminish the weight given to circumstances of mitigation because of his view as to the inadequacy of the prescribed maximum penalty

Criminal Code 1899 (Qld), s 307, s 544
Penalties and Sentences Act 1992 (Qld), s 161

Markarian v R [2005] HCA 25, approved
R v Barlow (1997) 188 CLR 1, cited
R v Mills (1977) 16 SASR 581, cited

COUNSEL:

A W Moynihan for the applicant
D Meredith for the respondent

SOLICITORS:

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

THE CHIEF JUSTICE: The applicant was sentenced to 18 months' imprisonment for the offence of being an accessory after the fact to manslaughter. One Ogborne with whom the applicant then shared a house was responsible for the manslaughter which occurred on the 10th of April 2002.

The applicant had been drinking at a hotel with the deceased…

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 Shales

Details

AGLC: R v Shales [2005] QCA 192
Case: [2005] QCA 192
Decision Date: 7 June 2005

CaseChat Overview and Summary

The appellant, Shales, was convicted on his own plea of guilty to being an accessory after the fact to manslaughter. The appellant was sentenced to 18 months imprisonment. The appellant initially gave a false account to the police. However, the appellant later cooperated with the police, albeit entirely selfishly and very late. This late cooperation resulted in the prosecution losing the opportunity to present a cogent case against the primary offender. The appellant spent five and a half months in pre-sentence custody. The appellant applied for leave to appeal against the sentence, arguing that it was manifestly excessive. The appellant also sought a declaration under section 161 of the Penalties and Sentences Act 1992 (Qld) in relation to the pre-sentence custody.

The legal issues before the court were whether the sentence was manifestly excessive, whether a declaration under section 161 of the Penalties and Sentences Act 1992 (Qld) in relation to pre-sentence custody should be made, and whether the trial judge was entitled to diminish the weight given to circumstances of mitigation because of his view as to the inadequacy of the prescribed maximum penalty. The court found that the appellant's appeal against sentence should be dismissed, and the application for leave to appeal was refused. The court also found that there was no basis to make a declaration under section 161 of the Penalties and Sentences Act 1992 (Qld) in relation to pre-sentence custody. The court found that the trial judge was not entitled to diminish the weight given to circumstances of mitigation because of his view as to the inadequacy of the prescribed maximum penalty.

The court found that the sentence was not manifestly excessive. The court found that the appellant's cooperation with the police, while belated, was a mitigating factor that should be taken into account. However, the court also found that the appellant's selfish motivation for cooperating with the police was an aggravating factor that should be taken into account. The court found that the appellant's pre-sentence custody should not be taken into account in determining the appropriate sentence. The court found that the trial judge was not entitled to diminish the weight given to circumstances of mitigation because of his view as to the inadequacy of the prescribed maximum penalty. The court found that the sentence was appropriate and not manifestly excessive. The application for leave to appeal against sentence was refused.

Orders

Orders of the court

Application for leave to appeal against sentence refused

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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CITATION:	R v Shales [2005] QCA 192
PARTIES:	R v SHALES, Leanne Myra (applicant)
FILE NO/S:	CA No 62 of 2005 SC No 152 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	7 June 2005
DELIVERED AT:	Brisbane
HEARING DATE:	7 June 2005
JUDGES:	de Jersey CJ, McPherson and Keane JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
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 REFUSED – where applicant convicted on own plea of guilty to being an accessory after the fact to manslaughter – where sentenced to 18 months imprisonment - where applicant initially gave a false account to police – where applicant cooperated with police, but where this cooperation was entirely selfish and came very late – where prosecution thus lost the chance of presenting a cogent case against the primary offender – where applicant spent five and half months in pre-sentence custody – whether the sentence was manifestly excessive CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – IRRELEVANT FACTORS – TIME SPENT IN CUSTODY – where applicant had spent time in custody while subject to the charge of murder – where applicant was subsequently charged with being an accessory after the fact to manslaughter – whether a declaration under s 161 of the Penalties and Sentences Act 1992 (Qld) in relation to pre-sentence custody be made CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – MAXIMUM SENTENCE – GENERALLY – where the trial judge pointed to the inadequacy of the prescribed maximum under s 544 of the Criminal Code 1899 (Qld) – whether the trial judge was entitled to diminish the weight given to circumstances of mitigation because of his view as to the inadequacy of the prescribed maximum penalty Criminal Code 1899 (Qld), s 307, s 544 Penalties and Sentences Act 1992 (Qld), s 161 Markarian v R [2005] HCA 25, approved R v Barlow (1997) 188 CLR 1, cited R v Mills (1977) 16 SASR 581, cited
COUNSEL:	A W Moynihan for the applicant D Meredith for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent