R v Berry - [2017] QCA 271

SUPREME COURT OF QUEENSLAND

CITATION:

R v Berry [2017] QCA 271

PARTIES:

R
v
BERRY, Ian
(applicant)

FILE NO/S:

CA No 167 of 2017
SC No 71 of 2017
SC No 51 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Cairns – Date of Sentence: 13 July 2017 (Byrne SJA)

DELIVERED ON:

Orders delivered ex tempore 8 November 2017
Reasons delivered 10 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

8 November 2017

JUDGES:

Sofronoff P and Gotterson and Philippides JJA

ORDERS:

Orders delivered 8 November 2017:

1.   Grant leave to appeal.

2.   Allow the appeal.

3.   Set aside the orders made on Charge 1.

4.   Order that the applicant be imprisoned for nine years.

5.   Order that pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) it be stated that the applicant was held in pre-sentence custody for 256 days between 17 March 2016 and 27 November 2016.

6.   It be declared that 256 days of pre-sentence custody be imprisonment already served under the sentence.

7.   That the applicant be eligible to apply for parole after serving four years of his term of imprisonment.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant had conducted a large methylamphetamine trafficking operation and had been a user of methylamphetamine himself – where the applicant was convicted of one count of trafficking in dangerous drugs, one count of possessing a dangerous drug in excess of two grams and three related summary charges – where the applicant was sentenced to 10 years and two months’ imprisonment – where the sentencing judge made a serious violent offence declaration, thereby obliging the applicant to serve 80 per cent of his sentence before being eligible for parole – where the applicant was aged between 24 and 25 years at the time of offending – where there was evidence that he had ceased using drugs and had commenced rehabilitation after being charged with the present offences – where the applicant had secured employment while on bail for the present offences – whether the sentencing judge adequately took the applicant’s rehabilitation efforts into account when imposing sentence

Penalties and Sentences Act 1992 (Qld), s 159A

R v Elizalde[2006] QCA 330, followed
R v Neilson [2014] QCA 221, followed
R v Taylor [2006] QCA 459, followed

COUNSEL:

J R Jones, with P Kinchina, for the applicant
D Balic for the respondent

SOLICITORS:

Philip Bovey & Company Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: On 13 July 2017 the applicant pleaded guilty to one count of trafficking in dangerous drugs, one count of possessing a dangerous drug in excess of two grams and three summary charges. Those were possessing property suspected of having been used in connection with trafficking in a dangerous drug, possessing suspected proceeds of trafficking in a dangerous drug and possessing…

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 Berry

Details

AGLC: R v Berry [2017] QCA 271
Case: [2017] QCA 271
Decision Date: 8 November 2017

CaseChat Overview and Summary

In the matter of R v Berry, the applicant appealed against his sentence, contending that it was manifestly excessive. The applicant had been involved in a large-scale methylamphetamine trafficking operation and was convicted on one count of trafficking in dangerous drugs, one count of possessing a dangerous drug in excess of two grams and three related summary charges. He was sentenced to 10 years and two months’ imprisonment, with a serious violent offence declaration, requiring him to serve 80 per cent of his sentence before being eligible for parole. The applicant was aged between 24 and 25 years at the time of offending and there was evidence that he had ceased using drugs and had commenced rehabilitation after being charged with the present offences. He had also secured employment while on bail.

The court was required to determine whether the sentencing judge adequately considered the applicant's rehabilitation efforts when imposing sentence. The court noted that the applicant had been involved in a large-scale trafficking operation and had been a user of methylamphetamine himself. However, the court also noted that the applicant had ceased using drugs and had commenced rehabilitation after being charged with the present offences. The court held that the sentencing judge did not adequately consider the applicant's rehabilitation efforts when imposing sentence. The court found that the sentence was manifestly excessive and granted leave to appeal, allowing the appeal and setting aside the orders made on Charge 1. The court ordered that the applicant be imprisoned for nine years, with 256 days of pre-sentence custody to be counted as time already served, and that the applicant be eligible to apply for parole after serving four years of his term of imprisonment.

Orders

Orders of the court

Orders delivered 8 November 2017:

1. Grant leave to appeal.

2. Allow the appeal.

3. Set aside the orders made on Charge 1.

4. Order that the applicant be imprisoned for nine years.

5. Order that pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) it be stated that the applicant was held in pre-sentence custody for 256 days between 17 March 2016 and 27 November 2016.

6. It be declared that 256 days of pre-sentence custody be imprisonment already served under the sentence.

7. That the applicant be eligible to apply for parole after serving four years of his term of imprisonment.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Berry [2017] QCA 271
PARTIES:	R v BERRY, Ian (applicant)
FILE NO/S:	CA No 167 of 2017 SC No 71 of 2017 SC No 51 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Cairns – Date of Sentence: 13 July 2017 (Byrne SJA)
DELIVERED ON:	Orders delivered ex tempore 8 November 2017 Reasons delivered 10 November 2017
DELIVERED AT:	Brisbane
HEARING DATE:	8 November 2017
JUDGES:	Sofronoff P and Gotterson and Philippides JJA
ORDERS:	Orders delivered 8 November 2017: 1. Grant leave to appeal. 2. Allow the appeal. 3. Set aside the orders made on Charge 1. 4. Order that the applicant be imprisoned for nine years. 5. *Order that pursuant to s 159A of the Penalties and Sentences Act* 1992 (Qld) it be stated that the applicant was held in pre-sentence custody for 256 days between 17 March 2016 and 27 November 2016. 6. It be declared that 256 days of pre-sentence custody be imprisonment already served under the sentence. 7. That the applicant be eligible to apply for parole after serving four years of his term of imprisonment.**
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant had conducted a large methylamphetamine trafficking operation and had been a user of methylamphetamine himself – where the applicant was convicted of one count of trafficking in dangerous drugs, one count of possessing a dangerous drug in excess of two grams and three related summary charges – where the applicant was sentenced to 10 years and two months’ imprisonment – where the sentencing judge made a serious violent offence declaration, thereby obliging the applicant to serve 80 per cent of his sentence before being eligible for parole – where the applicant was aged between 24 and 25 years at the time of offending – where there was evidence that he had ceased using drugs and had commenced rehabilitation after being charged with the present offences – where the applicant had secured employment while on bail for the present offences – whether the sentencing judge adequately took the applicant’s rehabilitation efforts into account when imposing sentence Penalties and Sentences Act 1992 (Qld), s 159A R v Elizalde[2006] QCA 330, followed R v Neilson [2014] QCA 221, followed R v Taylor [2006] QCA 459, followed
COUNSEL:	J R Jones, with P Kinchina, for the applicant D Balic for the respondent
SOLICITORS:	Philip Bovey & Company Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent