R v Brookes - [2017] QCA 63

SUPREME COURT OF QUEENSLAND

CITATION:

R v Brookes [2017] QCA 63

PARTIES:

R
v
BROOKES, Alan James
(applicant)

FILE NO/S:

CA No 182 of 2016
SC No 666 of 2016
SC No 65 of 2015
SC No 663 of 2016
SC No 781 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 23 June 2016

DELIVERED ON:

11 April 2017

DELIVERED AT:

Brisbane

HEARING DATE:

7 February 2017

JUDGES:

Gotterson and Morrison and McMurdo JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Grant leave to appeal.

2.   Allow the appeal.

3.   Set aside the order that the sentences for the counts on Indictment 666 of 2016 be cumulative upon the other sentences imposed on 23 June 2016.

4.   Substitute an order that the sentences for the counts upon Indictments numbered 65 and 781 of 2015 be cumulative upon the sentences imposed for the offences on the Indictment numbered 666 of 2016.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – NON-PAROLE PERIOD OR MINIMUM TERM – QUEENSLAND – PARTICULAR CASES – where the sentencing judge sentenced the applicant to a term of five years’ imprisonment for a drug trafficking offence cumulative upon a sentence of two years’ imprisonment for other offending – where s 182A Corrective Services Act 2006 (Qld) had the effect that the applicant was not eligible for parole until he had served 80 per cent of his term for the drug trafficking offence – where the sentencing judge fixed a parole eligibility date four years from the commencement of imprisonment for both offences rather than four years into the five year term of imprisonment for drug trafficking – whether the sentence complied with s 182A(3) Corrective Services Act 2006 (Qld)

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to trafficking in methylamphetamine over a six month period at a wholesale and retail level and other possession offences – where the applicant had been in custody for two months during the trafficking period but continued to manage the operation from prison – where the operation was large scale and the applicant had customers owing him amounts in the order of $20,000 and $30,000 – where the applicant was aged 50-51 years and had a relevant criminal history but had been a “largely law abiding citizen for many years” – where the applicant’s addiction to methylamphetamine provided some explanation for his conduct but the scale of the operation went beyond merely supporting his habit – where two co-offenders acted under his direction, were each at least 20 years younger than the applicant and with less serious criminal histories, and both received sentences of four years’ imprisonment – where the applicant was sentenced to five years’ imprisonment for the trafficking offence – where the applicant’s trial counsel had broadly…

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 Brookes

Details

AGLC: R v Brookes [2017] QCA 63
Case: [2017] QCA 63
Decision Date: 11 April 2017

CaseChat Overview and Summary

The appellant was convicted of drug trafficking and other related offences and was sentenced to five years’ imprisonment for trafficking methylamphetamine, with a two-year concurrent sentence for other offences. The sentencing judge ordered that the sentences be cumulative, making the total sentence seven years’ imprisonment. The appellant challenged the sentence, arguing that it was manifestly excessive and that the sentencing judge did not properly apply the principle of parity between co-offenders.

The appeal raised two main issues. First, whether the sentence complied with s 182A(3) of the Corrective Services Act 2006 (Qld), which sets out the non-parole period for drug trafficking offences. The appellant argued that the sentencing judge should have fixed the parole eligibility date four years into the five-year term for drug trafficking, rather than four years from the commencement of imprisonment for both offences. The second issue was whether the sentence was manifestly excessive given the appellant's role in the drug trafficking operation, his age, criminal history, and addiction to methylamphetamine.

The court found that the sentence did not comply with s 182A(3) because the parole eligibility date was incorrectly calculated. The court also found that the sentencing judge had not properly applied the principle of parity between co-offenders, as the appellant's sentence was harsher than that of his co-offenders, despite their lesser roles and criminal histories. The court held that the sentence was manifestly excessive, taking into account the appellant's age, criminal history, and addiction, but emphasised that the scale of the operation went beyond merely supporting his habit. The court allowed the appeal, set aside the order that the sentences be cumulative, and substituted an order that the sentences for the counts on Indictments numbered 65 and 781 of 2015 be cumulative upon the sentences imposed for the offences on the Indictment numbered 666 of 2016.

Orders

Orders of the court

1. Grant leave to appeal.

2. Allow the appeal.

3. Set aside the order that the sentences for the counts on Indictment 666 of 2016 be cumulative upon the other sentences imposed on 23 June 2016.

4. Substitute an order that the sentences for the counts upon Indictments numbered 65 and 781 of 2015 be cumulative upon the sentences imposed for the offences on the Indictment numbered 666 of 2016.

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 Brookes [2017] QCA 63
PARTIES:	R v BROOKES, Alan James (applicant)
FILE NO/S:	CA No 182 of 2016 SC No 666 of 2016 SC No 65 of 2015 SC No 663 of 2016 SC No 781 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 23 June 2016
DELIVERED ON:	11 April 2017
DELIVERED AT:	Brisbane
HEARING DATE:	7 February 2017
JUDGES:	Gotterson and Morrison and McMurdo JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant leave to appeal. 2. Allow the appeal. 3. Set aside the order that the sentences for the counts on Indictment 666 of 2016 be cumulative upon the other sentences imposed on 23 June 2016. 4. Substitute an order that the sentences for the counts upon Indictments numbered 65 and 781 of 2015 be cumulative upon the sentences imposed for the offences on the Indictment numbered 666 of 2016.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – NON-PAROLE PERIOD OR MINIMUM TERM – QUEENSLAND – PARTICULAR CASES – where the sentencing judge sentenced the applicant to a term of five years’ imprisonment for a drug trafficking offence cumulative upon a sentence of two years’ imprisonment for other offending – where s 182A Corrective Services Act 2006 (Qld) had the effect that the applicant was not eligible for parole until he had served 80 per cent of his term for the drug trafficking offence – where the sentencing judge fixed a parole eligibility date four years from the commencement of imprisonment for both offences rather than four years into the five year term of imprisonment for drug trafficking – whether the sentence complied with s 182A(3) Corrective Services Act 2006 (Qld) CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to trafficking in methylamphetamine over a six month period at a wholesale and retail level and other possession offences – where the applicant had been in custody for two months during the trafficking period but continued to manage the operation from prison – where the operation was large scale and the applicant had customers owing him amounts in the order of $20,000 and $30,000 – where the applicant was aged 50-51 years and had a relevant criminal history but had been a “largely law abiding citizen for many years” – where the applicant’s addiction to methylamphetamine provided some explanation for his conduct but the scale of the operation went beyond merely supporting his habit – where two co-offenders acted under his direction, were each at least 20 years younger than the applicant and with less serious criminal histories, and both received sentences of four years’ imprisonment – where the applicant was sentenced to five years’ imprisonment for the trafficking offence – where the applicant’s trial counsel had broadly…