R v. Armstrong - [2007] QCA 427

SUPREME COURT OF QUEENSLAND

CITATION:

R v Armstrong [2007] QCA 427

PARTIES:

R
v
ARMSTRONG, Zakkery John
(applicant)

FILE NO/S:

CA No 215 of 2007
SC No 441 of 2007
SC No 511 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

30 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2007

JUDGES:

McMurdo P, Jerrard JA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where the applicant pleaded guilty to a count charging him jointly with another with the unlawful production of the dangerous drug cannabis sativa in a quantity that exceeded 500 grams – where the applicant and the co-offender were sentenced to 12 months imprisonment – where the learned judge fixed the date of sentence as the parole release date – where the trial judge ordered that the applicant and the co-offender perform unpaid community service in respect of some summary offences to which they also pleaded guilty – where the applicant sought leave to appeal against his sentence alleging the head sentence was manifestly excessive, and should be reduced to four months imprisonment – whether the sentence was manifestly excessive

R v Tarabay[1998] QCA 317; CA No 107 of 1998, 29 May 1998, applied

COUNSEL:

C F C Wilson for the applicant

M R Byrne for the respondent

SOLICITORS:

Buckland Criminal Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

PMcMURDO: The application for leave to appeal against sentence should be refused for the reasons given by Jerrard JA.

JERRARD JA
: On 3 August 2007 Mr Armstrong pleaded guilty to a count charging him jointly with one Stephen Pitt with the unlawful production of the dangerous drug cannabis sativa between 30 May 2006 and 20 August 2006 at Brisbane, in a quantity that exceeded 500 grams. Both men were sentenced to

12 months imprisonment, and the learned judge fixed the date of sentence

(3 August 2007) as the parole release date. He also ordered that each perform unpaid community service in respect of some summary offences to which they also pleaded guilty. Mr Armstrong has sought leave to appeal against his sentence alleging the head sentence was manifestly excessive, and should be reduced to four months imprisonment.

The agreed facts included that on 20 August 2006 police executed a search warrant on Mr Armstrong’s dwelling, and located two hydroponic gardens in one bedroom where cannabis plants were growing, and other bedrooms with growing cannabis seedlings. Additionally, some green leafy material was located. The learned sentencing judge was informed that there was no evidence to show that there was any variety of commercial intent on the part of either defendant, although they had 30…

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. Armstrong

Details

AGLC: R v Armstrong [2007] QCA 427
Case: [2007] QCA 427
Decision Date: 30 November 2007

CaseChat Overview and Summary

In the matter of R v. Armstrong, the appellant contested the sentence imposed by the trial judge following his guilty plea to jointly producing a quantity of cannabis sativa exceeding 500 grams. The appellant and his co-offender were sentenced to 12 months imprisonment, with the parole eligibility date set as the sentence commencement date. Additionally, the trial judge ordered both to perform unpaid community service for related summary offences. The appellant sought leave to appeal, arguing that the sentence was manifestly excessive and should be reduced to four months imprisonment.

The primary legal issue before the court was whether the sentence of 12 months imprisonment, with parole eligibility set as the sentence commencement date, was manifestly excessive. The appellant contended that the sentence was disproportionately harsh and should be reduced. The court had to consider the principles of sentencing, the nature of the offence, the culpability of the offender, and the necessity of the sentence to achieve the purposes of punishment, deterrence, and rehabilitation.

The court dismissed the application, finding that the sentence was not manifestly excessive. The judge noted that the quantity of the drug involved and the role of the appellant in the production warranted a significant custodial sentence. The court emphasised that the 12-month sentence, with parole eligibility immediately, was appropriate given the circumstances. The additional requirement of unpaid community service addressed other aspects of the offender's conduct. The court concluded that the sentence was proportionate and did not represent an abuse of discretion.

No orders were made in favour of the appellant. The application to appeal against the sentence was dismissed.

Orders

Orders of the court

Application dismissed

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 Armstrong [2007] QCA 427
PARTIES:	R v ARMSTRONG, Zakkery John (applicant)
FILE NO/S:	CA No 215 of 2007 SC No 441 of 2007 SC No 511 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	30 November 2007
DELIVERED AT:	Brisbane
HEARING DATE:	23 November 2007
JUDGES:	McMurdo P, Jerrard JA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where the applicant pleaded guilty to a count charging him jointly with another with the unlawful production of the dangerous drug cannabis sativa in a quantity that exceeded 500 grams – where the applicant and the co-offender were sentenced to 12 months imprisonment – where the learned judge fixed the date of sentence as the parole release date – where the trial judge ordered that the applicant and the co-offender perform unpaid community service in respect of some summary offences to which they also pleaded guilty – where the applicant sought leave to appeal against his sentence alleging the head sentence was manifestly excessive, and should be reduced to four months imprisonment – whether the sentence was manifestly excessive R v Tarabay[1998] QCA 317; CA No 107 of 1998, 29 May 1998, applied
COUNSEL:	C F C Wilson for the applicant M R Byrne for the respondent
SOLICITORS:	Buckland Criminal Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent