R v Borowicz

[2016] QCA 211

SUPREME COURT OF QUEENSLAND

CITATION:

R v Borowicz [2016] QCA 211

PARTIES:

R
v
BOROWICZ, Frey Newton
(applicant)

FILE NO/S:

CA No 260 of 2015
SC No 537 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 20 July 2015

DELIVERED ON:

26 August 2016

DELIVERED AT:

Brisbane

HEARING DATE:

17 June 2016

JUDGES:

Holmes CJ and Gotterson and Philip McMurdo JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to a five count indictment, the most serious offence being trafficking in the dangerous drugs methylamphetamine, MDMA and cannabis over a four month period – where the applicant supplied customers on a frequent basis at street level, making a profit of between $5,400 and $7,200 which was used to fund a drug habit commencing after the loss of employment – where the applicant was sentenced to five years imprisonment suspended after one year and eight months for the trafficking offence – where the applicant alleges the sentence imposed for the trafficking count is manifestly excessive – where it is submitted that, had the appropriate comparable decisions been provided to the learned sentencing judge in sentencing, it would have established a pattern of suspensions at less than a third in similar trafficking cases – where the learned sentencing judge was required to consider the effect of s 5(2) of the Drugs Misuse Act 1986 (Qld) – whether the sentence imposed is manifestly excessive

Drugs Misuse Act 1986 (Qld), s 5, s 145
Penalties and Sentences Act 1992 (Qld), s 144

R v Baker[2011] QCA 104, considered
R v Baradel[2016] QCA 114, considered
R v Blumke [2015] QCA 264, considered
R v Challacombe[2009] QCA 314, considered
R v Clark[2016] QCA 173, approved
R v Connolly[2016] QCA 132, cited
R v C’Ward[2014] QCA 15, considered
R v Jobsz[2013] QCA 5, considered
R v McAway (2008) 191 A Crim R 475; [2008] QCA 401, considered
R v Mikula[2015] QCA 102, considered
R v Pham (2015) 90 ALJR 13; [2015] HCA 39, applied
R v Suleman [2015] QSC 5, cited
R v Taylor[2005] QCA 379, considered

COUNSEL:

B J Power for the applicant
S J Farnden for the respondent

SOLICITORS:

Fisher Dore Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. HOLMES CJ:  I agree with the reasons of Gotterson JA and the order he proposes.

2. GOTTERSON JA:  On 20 July 2015, a five-count indictment was presented in the Supreme Court at Brisbane against the applicant, Frey Newton Borowicz.  It alleged offences against the Drugs Misuse Act 1986 (Qld) (“DMA”),[1] the…