R v Marshall [2012] QCA 215

The applicant does not now challenge the appropriateness of that head sentence.

The prosecutor recognised that the applicant merited early release by reason of his plea of guilty. He submitted that the plea in this case was of less value to the applicant as a signal of his willingness to co-operate in the administration of justice, because the offence was committed during the period of the bond, and because of his long history of similar offences. He submitted that the applicant should be released after serving 40 per cent of the sentence imposed.

Counsel for the applicant submitted that release should occur after one third of the sentence was served.

The judge evidently preferred the submission of the prosecutor. He noted that he took the breach into account, and subsequently the sentence for the breach was made concurrent by the Magistrates Court.

In this Court, the respondent also referred to the strength of the Crown case against the applicant. That was another factor diluting the benefit of the plea of guilty. The applicant contended that the period until release should be reduced from 15 months to 12 months. He summarised his grounds thus in his outline of submissions:

"A true picture of how the offences I was convicted of occurred, and the background to how I became involved in committing those crimes, was confused by the sitting judge. There were a number of errors in evidence given by the DPP, and all those errors are shown in Item Number 1, and supporting documents."

The attached Item Number 1 consisted of several pages of alleged but unverified facts, all or at least most of which were not put before the sentencing judge, an omission for which the applicant blamed his barrister, who was a very experienced counsel in criminal matters.

There has been no application to lead fresh evidence, and no grounds for making such an application are apparent in what has been put before us. I would, therefore, disregard the additional evidence sought to be relied upon.

When an appeal against sentence is made solely on the ground of manifest excess:

"Intervention is warranted only where the difference between the result arrived at below, and the sentences imposed in other cases is such that in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons".

The quotation is from Wong v Queen [2001] HCA 64; (2001) 207 CLR 584 at page 605.

The applicant attached to his outline of submissions a list of allegedly comparable sentences. The sources of this list was not identified. The list does not demonstrate the requirement to serve 40 per cent rather than one third of a three year sentence following a plea of guilty in circumstances such as the present, is significantly different from what has been imposed in other cases. Far less does it demonstrate that the sentencing judge must somehow have mis-applied proper sentencing principle.

A different list of allegedly comparable sentences was placed before the sentencing Judge by the prosecutor. The same comment is applicable to that list also.

THE PRESIDENT: The order is the application for leave to appeal is refused. Adjourn the court.