R v Armstrong

[2005] QCA 116

SUPREME COURT OF QUEENSLAND

CITATION:

R v Armstrong [2005] QCA 116

PARTIES:

R
v
ARMSTRONG, Neil Anthony

(applicant)

FILE NO/S:

CA No 83 of 2005

SC No 482 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING
 COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

15 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

15 April 2005

JUDGES:

McMurdo P and Keane JA and Philippides J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.        Application for leave to appeal against sentence granted;

2.        Appeal allowed by setting aside the sentence and in lieu thereof order that the applicant be imprisoned for 18 months and that the sentence be suspended forthwith for an operational period of 2 years.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – where applicant sentenced to 2½ years imprisonment suspended after 12 months for an operational period of 3 years for unlawful possession of methylamphetamine in excess of 2 grams – where applicant had served 8 months in pre-sentence custody which was taken into account – where applicant made rehabilitation efforts and drug-free for some time – whether sentence imposed manifestly excessive

R v Brooker [2002] QCA 101; CA No 35 of 2002; 20 March 2002
R v Christie [2000] QCA 165; CA No 430 of 1999; 8 May 2000, considered
R v Hesketh; ex parte A-G(Qld) [2004] QCA 116; CA No 411 of 2003; 23 April 2004, considered
R v Kennedy [2000] QCA 140; CA No 23 of 2000; 14 April 2000, considered
R v Tabe [2004] QCA 17; CA No 376 of 2003; 10 February 2004, distinguished

R v Woods [2004] QCA 204; CA No 99 of 2004; 18 June 2004, considered

COUNSEL:

BW Farr for the applicant

M Copley for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

PHILIPPIDES J:  Neil Anthony Armstrong was convicted on 28 February 2005 on his plea to a charge of unlawfully possessing the dangerous drug methylamphetamine in a quantity exceeding 2 grams.  He was sentenced on 3 March 2005 to two and a half years' imprisonment suspended after 12 months for an operational period of three years.  A declaration was made in respect of pre-sentence custody of 237 days from 21 January 2004 to 14 September 2004.  The applicant seeks leave to appeal against that sentence on the basis that it was manifestly excessive. 

The applicant, who was born on 20 September 1969 was 34 years of age at the time of the offence and 35 at sentence.

The offence came to light when police executed a search warrant at the applicant's home at Loganholme on 22 January 2004.  During the search they located a large clipseal bag which in turn contained three other clipseal bags. 

One clipseal bag contained 14.044 grams of moist brown substance which was analysed to be 5.9 per…