Regina v McQueeney [2005] NSWCCA 168

Regina v McQueeney [2005] NSWCCA 168

Although the sentencing judge erred by treating the applicant's criminal history as an aggravating feature under s 21A, the applicant's long recidivist history and dangerous propensity justified significant weight being given to retribution, deterrence and protection of society, so the 10 year sentence for the attempted sexual intercourse offence was within range. However, applying totality, accumulation of 18 months was excessive for six offences against two complainants over about three months; six months' accumulation was sufficient. The appeal was allowed in part and the commencement date of the 10 year sentence was altered.

Jurisdiction
Australia
Judgment Date
02 May 2005
Procedural Posture
Application for Leave to Appeal Against Severity of Sentence / Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed in part; sentence on charge of attempt sexual intercourse with child under 10 quashed and resentenced.
Legal Topics
['attempted Sexual Intercourse With Child Under 10' 'aggravated Indecent Assault' 'antecedent Criminal History in Sentencing' 'manifest Excess' 'totality' 'partial Accumulation' 'form 1 Offences']
['criminal Law' 'sentencing' 'sexual Offences'] ['attempted Sexual Intercourse With Child Under 10' 'aggravated Indecent Assault' 'antecedent Criminal History in Sentencing' 'manifest Excess' 'totality' 'partial Accumulation' 'form 1 Offences']

Case Brief

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Procedural Posture

Application for Leave to Appeal Against Severity of Sentence / Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the sentencing judge erred by treating the applicant's prior sexual convictions involving children as an aggravating feature of the offences." 'Whether the sentence of 10 years imprisonment for attempt sexual intercourse with a child under 10 was manifestly excessive.' 'Whether the partial accumulation of the sentence for attempted sexual intercourse upon the sentence for aggravated indecent assault produced a manifestly excessive effective sentence.']

Ratio Decidendi

Although the sentencing judge erred by treating the applicant's criminal history as an aggravating feature under s 21A, the applicant's long recidivist history and dangerous propensity justified significant weight being given to retribution, deterrence and protection of society, so the 10 year sentence for the attempted sexual intercourse offence was within range. However, applying totality, accumulation of 18 months was excessive for six offences against two complainants over about three months; six months' accumulation was sufficient. The appeal was allowed in part and the commencement date of the 10 year sentence was altered.

Court Disposition

Leave to appeal granted; appeal allowed in part; sentence on charge of attempt sexual intercourse with child under 10 quashed and resentenced.

Orders

  • ['Leave to appeal granted, appeal allowed in part.' 'Sentence on charge of Attempt Sexual Intercourse with Child under 10, quashed. In lieu I would impose a sentence of 10 years to commence on 2nd March 2004 expiring 1st March 2014, non-parole period of 7 years to commence 2nd March 2004, expiring 1st March 2011.']