R v Bell - [2011] QCA 101

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bell [2011] QCA 101

PARTIES:

R
v
BELL, Matthew Scott
(applicant/appellant)

FILE NO/S:

CA No 41 of 2011
SC No 124 of 2009
SC No 125 of 2009
SC No 126 of 2009
SC No 305 of 2009
SC No 336 of 2009
SC No 339 of 2009
SC No 340 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)
Sentence Application (Extension Granted)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Orders delivered ex tempore on 12 May 2011
Reasons delivered 17 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

12 May 2011

JUDGES:

Margaret McMurdo P and Fraser and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 12 May 2011:

1.Grant an extension of time to 17 March 2011 for the applicant’s application for leave to appeal against sentence.

2.Grant the application to appeal against sentence.

3.Appeal against sentence allowed.

4.Vary the sentence imposed at first instance by:

(a) Reducing the term of imprisonment of three and a half years imposed on the count of supply of a dangerous drug to 2 years 4 months 1 day.

(b) Setting aside the order fixing the appellant’s parole eligibility date at 5 March 2010.

(c)Ordering that the date for the appellant to be released on parole is 12 May 2011.

5.The sentence imposed at first instance is otherwise confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant delayed in applying for leave to appeal against sentence for over one year and 10 months – where the applicant alleged he was misinformed by his solicitors that the sentence was appropriate, it took him some months to discover a disparity between his sentence and that imposed upon others, and his parole application process delayed his appeal – whether the extension of time should be granted

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced for an offence of supplying a dangerous drug, wilful damage, multiple offences of dishonesty, a number of summary offences and breaches of two suspended sentences – where the applicant received an effective sentence of three years and 11 months imprisonment with parole eligibility after 19 months – where the sentence was imposed on the basis that the supply offence was the most serious offence – where the supply was of less than one gram of cannabis sativa to a prisoner in the dock of an open courtroom – where the applicant had an extensive criminal history – where the applicant entered early pleas of guilty and expressed regret and a desire to remake his life – where the respondent contended that the sentence reflected the applicant’s overall criminality – whether the sentence was manifestly excessive

Drugs Misuse Act 1986…

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 Bell

Details

AGLC: R v Bell [2011] QCA 101
Case: [2011] QCA 101
Decision Date: 12 May 2011

CaseChat Overview and Summary

The case of R v Bell involved the applicant appealing against his sentence, which had been imposed following a series of offences, including the supply of a dangerous drug, wilful damage, multiple instances of dishonesty, and various summary offences. The applicant also had breaches of suspended sentences to contend with. The court was tasked with determining whether the sentence was manifestly excessive or inadequate and whether an extension of time should be granted for the applicant's appeal, given the delay in lodging the application. The applicant contended that he had been misinformed by his solicitors, which led to a delay in realising the disparity between his sentence and those imposed on others, and his parole application process had further delayed his appeal.

The primary legal issues before the court were whether the sentence imposed by the lower court was manifestly excessive or inadequate, and whether the applicant's delay in applying for leave to appeal should be excused. The applicant argued that the sentence was excessive given the circumstances of the drug supply offence and his overall criminal history, which included an early guilty plea and expressions of regret. The respondent maintained that the sentence appropriately reflected the applicant's criminal conduct. Additionally, the court had to consider the applicant's delay in applying for leave to appeal and whether it was justified under the circumstances.

The court found that the applicant's delay in applying for leave to appeal was partially justified by his reliance on his solicitors' advice and the subsequent discovery of the disparity in sentencing. Despite this, the court held that the sentence imposed was manifestly excessive given the minor nature of the drug supply offence and the applicant's remorse and desire to reform. The court reduced the term of imprisonment for the drug supply offence and adjusted the parole eligibility date accordingly. The remainder of the sentence was confirmed as appropriate.

The court granted an extension of time for the applicant's appeal application, allowed the appeal against sentence, and varied the original sentence by reducing the term of imprisonment on the drug supply charge and adjusting the parole eligibility date. The rest of the original sentence was confirmed.

Orders

Orders of the court

Delivered ex tempore on 12 May 2011:

1.Grant an extension of time to 17 March 2011 for the applicant’s application for leave to appeal against sentence.

2.Grant the application to appeal against sentence.

3.Appeal against sentence allowed.

4.Vary the sentence imposed at first instance by:

(a) Reducing the term of imprisonment of three and a half years imposed on the count of supply of a dangerous drug to 2 years 4 months 1 day.

(b) Setting aside the order fixing the appellant’s parole eligibility date at 5 March 2010.

(c)Ordering that the date for the appellant to be released on parole is 12 May 2011.

5.The sentence imposed at first instance is otherwise confirmed.

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 Bell [2011] QCA 101
PARTIES:	R v BELL, Matthew Scott (applicant/appellant)
FILE NO/S:	CA No 41 of 2011 SC No 124 of 2009 SC No 125 of 2009 SC No 126 of 2009 SC No 305 of 2009 SC No 336 of 2009 SC No 339 of 2009 SC No 340 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence) Sentence Application (Extension Granted)
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	Orders delivered ex tempore on 12 May 2011 Reasons delivered 17 May 2011
DELIVERED AT:	Brisbane
HEARING DATE:	12 May 2011
JUDGES:	Margaret McMurdo P and Fraser and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore on 12 May 2011: 1.Grant an extension of time to 17 March 2011 for the applicant’s application for leave to appeal against sentence. 2.Grant the application to appeal against sentence. 3.Appeal against sentence allowed. 4.Vary the sentence imposed at first instance by: (a) Reducing the term of imprisonment of three and a half years imposed on the count of supply of a dangerous drug to 2 years 4 months 1 day. (b) Setting aside the order fixing the appellant’s parole eligibility date at 5 March 2010. (c)Ordering that the date for the appellant to be released on parole is 12 May 2011. 5.The sentence imposed at first instance is otherwise confirmed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant delayed in applying for leave to appeal against sentence for over one year and 10 months – where the applicant alleged he was misinformed by his solicitors that the sentence was appropriate, it took him some months to discover a disparity between his sentence and that imposed upon others, and his parole application process delayed his appeal – whether the extension of time should be granted CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced for an offence of supplying a dangerous drug, wilful damage, multiple offences of dishonesty, a number of summary offences and breaches of two suspended sentences – where the applicant received an effective sentence of three years and 11 months imprisonment with parole eligibility after 19 months – where the sentence was imposed on the basis that the supply offence was the most serious offence – where the supply was of less than one gram of cannabis sativa to a prisoner in the dock of an open courtroom – where the applicant had an extensive criminal history – where the applicant entered early pleas of guilty and expressed regret and a desire to remake his life – where the respondent contended that the sentence reflected the applicant’s overall criminality – whether the sentence was manifestly excessive Drugs Misuse Act 1986…