R v Barnes - [2004] QCA 459

SUPREME COURT OF QUEENSLAND

CITATION:

R v Barnes [2004] QCA 459

PARTIES:

R
v
BARNES, Terence

(applicant)

FILE NO/S:

CA No 352 of 2004
SC No 597 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING
COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

25 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

25 November 2004

JUDGES:

McPherson and Jerrard JJA 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 allowed

2.   Allow the appeal

3.   Set aside the sentence imposed in respect of count one on the indictment and order that the applicant be sentenced on that count to imprisonment for four months to be served concurrently with the other sentences

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – where applicant sentenced for aggravated production of a dangerous drug, possession of a dangerous drug, possession of things and possession of instructions to 2 and a half years imprisonment, suspended after 9 months for an operational period of 4 years – where possession for personal use – where applicant had a prior drug conviction – whether sentence manifestly excessive

R v Adams [2003] QCA 22; CA No 340 of 2002, 5 February 2003, considered
R v Applewaite & Jones (1996) 90 A Crim R 167, distinguished
R v Bozzetto [2002] QCA 189 ; CA No 64 of 2002, 27 May 2002, distinguished
R v Laing [2003] QCA 92; CA No 411 of 2002, 6 March 2003, considered
R v Neale [2004] QCA 128; CA No 70 of 2004, 23 April 2004, distinguished
R v Roulstone [1998] QCA 324; CA No 254 of 1998, 18 September 1998, distinguished

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

COUNSEL:

A J Kimmins for the applicant

D Meredith for the respondent

SOLICITORS:

Price & Roobottom for the applicant
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: I ask Justice Philippides to deliver the first judgment.

PHILIPPIDES J: This is an application leave to appeal against sentence. On 17 September 2004, the applicant, who is 34 years of age and an electrician by trade, was sentenced on his plea to one count of production of the dangerous drug cannabis sativa with a circumstance of aggravation. A sentence of two and a half years imprisonment suspended after nine months for an operational of four years was imposed.

The applicant also pleaded to one count of possession of cannabis sativa for which he was sentenced to one month imprisonment; one count of possession of things, namely a quantity of hydroponic equipment and chemicals used in connection with the production of a dangerous drug for which he was sentenced to three months imprisonment; and one count of possession of a document containing instructions regarding the production of cannabis sativa in respect of which he received three months imprisonment.

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 Barnes

Details

AGLC: R v Barnes [2004] QCA 459
Case: [2004] QCA 459
Decision Date: 25 November 2004

CaseChat Overview and Summary

The case of R v Barnes involved the applicant, who was convicted of aggravated production of a dangerous drug, possession of a dangerous drug, possession of things, and possession of instructions. The applicant was sentenced to 2 and a half years imprisonment, suspended after 9 months, for an operational period of 4 years. The applicant sought leave to appeal against the sentence imposed on count one of the indictment, arguing that it was manifestly excessive. The case was heard in the Court of Appeal.

The central legal issue before the Court of Appeal was whether the sentence imposed on the applicant was manifestly excessive. The applicant's counsel argued that the sentence was disproportionate to the seriousness of the offence, particularly given that the possession was for personal use and the applicant had a prior drug conviction. The Crown, on the other hand, submitted that the sentence was appropriate, taking into account the seriousness of the offence and the applicant's criminal history.

The Court of Appeal found that the sentence imposed on the applicant was manifestly excessive. The Court noted that the possession of the drug was for personal use, and that the applicant had a prior drug conviction. The Court also took into account the fact that the applicant had pleaded guilty and had shown remorse for his actions. The Court held that the sentence imposed on the applicant was disproportionate to the seriousness of the offence and that it was appropriate to set aside the sentence and order that the applicant be sentenced to imprisonment for four months to be served concurrently with the other sentences.

The Court of Appeal allowed the applicant's appeal and set aside the sentence imposed on count one of the indictment. The Court ordered that the applicant be sentenced to imprisonment for four months to be served concurrently with the other sentences. The Court also granted the applicant leave to appeal against the sentence.

Orders

Orders of the court

1. Application for leave to appeal allowed

2. Allow the appeal

3. Set aside the sentence imposed in respect of count one on the indictment and order that the applicant be sentenced on that count to imprisonment for four months to be served concurrently with the other sentences

Background

Background to the litigation

Full text does not contain this section.

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 Barnes [2004] QCA 459
PARTIES:	R v BARNES, Terence (applicant)
FILE NO/S:	CA No 352 of 2004 SC No 597 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	25 November 2004
DELIVERED AT:	Brisbane
HEARING DATE:	25 November 2004
JUDGES:	McPherson and Jerrard JJA 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 allowed 2. Allow the appeal 3. Set aside the sentence imposed in respect of count one on the indictment and order that the applicant be sentenced on that count to imprisonment for four months to be served concurrently with the other sentences
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – where applicant sentenced for aggravated production of a dangerous drug, possession of a dangerous drug, possession of things and possession of instructions to 2 and a half years imprisonment, suspended after 9 months for an operational period of 4 years – where possession for personal use – where applicant had a prior drug conviction – whether sentence manifestly excessive R v Adams [2003] QCA 22; CA No 340 of 2002, 5 February 2003, considered R v Applewaite & Jones (1996) 90 A Crim R 167, distinguished R v Bozzetto [2002] QCA 189 ; CA No 64 of 2002, 27 May 2002, distinguished R v Laing [2003] QCA 92; CA No 411 of 2002, 6 March 2003, considered R v Neale [2004] QCA 128; CA No 70 of 2004, 23 April 2004, distinguished R v Roulstone [1998] QCA 324; CA No 254 of 1998, 18 September 1998, distinguished R v Tarabay [1998] QCA 317; CA No 107 of 1998, 29 May 1998, distinguished
COUNSEL:	A J Kimmins for the applicant D Meredith for the respondent
SOLICITORS:	Price & Roobottom for the applicant Director of Public Prosecutions (Queensland) for the respondent