R v Allingham, Landsdowne, Marshall and Booth - [1994] QCA 433

IN THE COURT OF APPEAL [1994] QCA 433

SUPREME COURT OF QUEENSLAND	C.A. No. 226 of 1994 C.A. No. 258 of 1994 C.A. No. 257 of 1994 C.A. No. 259 of 1994
Brisbane
BeforeFitzgerald P. Davies J.A. Cullinane J.

[R. v. Allingham, Lansdowne, Marshall and Booth]

T H E Q U E E N

RUPERT GEORGE ALLINGHAM

(Applicant)

PAUL JEFFREY LANSDOWNE GARY REX JOHN MARSHALL

GARRY BOOTH

(Respondents)

DIRECTOR OF PUBLIC PROSECUTIONS

(Appellant/Respondent)

REASONS FOR JUDGMENT - FITZGERALD P. AND DAVIES J.A.

Judgment delivered 27/10/1994

The material circumstances in these proceedings, which were

heard together, are set out in the reasons for judgment of

Cullinane J. and need not be repeated.

All four sentences seem to us low, but they were imposed by two

very experienced Trial Division Judges.

To some extent at least, what occurred appears to have been influenced by the sequence of events. Allingham was the first

of the four sentenced, although another participant in the criminal activity, Sandra Lee Steele, had been sentenced earlier. She was treated leniently, which might well have been correct because of her personal circumstances, but her treatment seems to have influenced the attitude adopted by the prosecution in relation to Allingham after he was convicted. In this Court,

the prosecution accepted that the range for Allingham was 18

months to 3 years imprisonment and that the sentence imposed avoided any disparity with Ms. Steele and was otherwise appropriate. This seems also to have been the position which the prosecution adopted before the sentencing judge.

In these circumstances, the prosecution's suggested range in

relation to Booth is untenable, and to maintain parity between Allingham and Booth the prosecution's appeal against Booth's

sentence must fail.

Likewise, Allingham's application for leave to appeal, which is

totally without basis except insofar as some disparity can be

pointed to, cannot rely upon a disparity between Allingham and

Booth.

Before considering Allingham further, it is appropriate to

consider Marshall, the driver of the truck which transported the container in which the drugs were imported, and Lansdowne, the driver of the accompanying vehicle.

As Cullinane J. points out, Marshall and Lansdowne were

acquitted of being knowingly concerned in the importation of a prohibited import but convicted of possession of a prohibited

import. The trial judge sentenced them on the basis of what he considered to be the extent of their involvement. In order to understand, and consider the correctness of his view, it is necessary to analyse the basis on which he had instructed the jury.

It is unnecessary to consider much of what he said about

possession. For present purposes, the material element of the

charge on which Marshall and Lansdowne was convicted concerned their knowledge. The "real question" in relation to Marshall,

his Honour told the jury, "is whether he knew he was carrying

cannabis". A little later, he continued:
"... . There is no need for an accused to know that the

drug was imported ... . There is a provision in the Act…

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 Allingham, Landsdowne, Marshall and Booth

Details

AGLC: R v Allingham, Landsdowne, Marshall and Booth [1994] QCA 433
Case: [1994] QCA 433
Decision Date: 27/10/1994

CaseChat Overview and Summary

The Court of Appeal in Queensland heard the case of R v Allingham, Lansdowne, Marshall and Booth, in which the Crown appealed against the sentences of two individuals, and two of the defendants applied for leave to appeal against their sentences. The case involved four individuals who were involved in the importation of a prohibited drug, with Allingham as the primary offender and Lansdowne, Marshall, and Booth as accessories. The Crown argued that the sentences imposed by the trial judge were too lenient, while Allingham and Booth sought to appeal on the basis of disparity in sentencing. The Court of Appeal was required to determine whether the sentences imposed were appropriate, whether there was any disparity in sentencing between the defendants, and whether the appeals should be allowed.

The Court of Appeal found that the sentences imposed by the trial judge were appropriate, taking into account the circumstances of the case and the fact that Allingham was the primary offender. The Court noted that the prosecution had accepted that Allingham's sentence was appropriate, and that there was no basis for finding disparity between Allingham and Booth's sentences. The Court also found that Lansdowne and Marshall's sentences were appropriate, as the trial judge had based his sentencing on the assumption that their involvement was lesser than that of Allingham. The Court held that it was within the trial judge's discretion to make this assumption, and that the appeals against Lansdowne and Marshall's sentences should be dismissed.

The Court of Appeal dismissed the Crown's appeal against Lansdowne and Marshall's sentences, and Allingham's and Booth's applications for leave to appeal. The Court held that the sentences imposed by the trial judge were appropriate and that there was no disparity in sentencing between the defendants. The Court further held that it was within the trial judge's discretion to assume that Lansdowne and Marshall's involvement was lesser than that of Allingham, and that the appeals should be dismissed.

Orders