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R v Brown

R v Brown

Case [2015] QCA 225 13 November 2015

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Brown [2015] QCA 225

PARTIES:

R
v
BROWN, Kieran Daniel
(applicant)

FILE NO/S:

CA No 315 of 2014
SC No 993 of 2011
SC No 235 of 2013
SC No 278 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 10 December 2013

DELIVERED ON:

13 November 2015

DELIVERED AT:

Brisbane

HEARING DATE:

9 June 2015

JUDGES:

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

ORDER:

The application for an extension of time for leave to appeal is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the application for leave to appeal was filed 11 months late – where the applicant’s only explanation for eight months of that delay was that his lawyers, at the time of his sentence, did not advise him that he could appeal – whether the explanation provided is adequate – whether an extension of time for leave to appeal should be granted

APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to a number of drug related offences, including trafficking in methylamphetamine, MDMA and MDEA over a period of 19 months and was sentenced to nine years’ imprisonment for the trafficking – where the applicant’s offending was very serious and was committed, for the most part, while on bail – where the prosecutor, during sentencing submissions, informed the sentencing judge that MDMA is a Schedule 1 dangerous drug for the purpose of the Drugs Misuse Act 1986 (Qld) – where, in fact, MDMA was a Schedule 2 dangerous drug for a large part of the trafficking period – where the sentencing judge did not place emphasis on the types of drugs trafficked and, instead, focused on the nature, extent and seriousness of the offending – whether the sentence imposed on the trafficking count was manifestly excessive

Drugs Misuse Act 1986 (Qld), s 5 , s 9
Drugs Misuse Amendment Act 2008 (Qld)
Drugs Misuse Regulation 1987 (Qld)

Beil v Mansell (No 1) [2006] 2 Qd R 199; [2006] QCA 173, cited
Chapman v State of Queensland[2003] QCA 172, cited
Queensland Trustees Limited v Fawckner [1964] Qd R 153, cited
R v Assurson (2007) 174 A Crim R 78; [2007] QCA 273, considered
R v Feakes[2009] QCA 376, considered
R v Johnson[2007] QCA 433, considered
R v McGinniss[2015] QCA 34, considered
R v Saunders[2007] QCA 93, considered
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited
Spencer & Anor v Hutson & Ors[2007] QCA 178, cited

COUNSEL:

S G Bain for the applicant
C N Marco for the respondent

SOLICITORS:

Mulcahy Ryan Lawyers for the applicant
Director of Public…

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 Brown

Details

AGLC: R v Brown [2015] QCA 225
Case: [2015] QCA 225
Decision Date: 13 November 2015

CaseChat Overview and Summary

In the case of R v Brown, the applicant appealed against the sentence imposed by the lower court following his conviction for various drug-related offences. The applicant, Mr Brown, pleaded guilty to trafficking in methylamphetamine, MDMA, and MDEA over a 19-month period and was sentenced to nine years' imprisonment for the trafficking offences. The primary issue before the court was whether the applicant's late application for leave to appeal could be excused and whether the sentence was manifestly excessive.

The court first considered the adequacy of the applicant's explanation for the delay in filing the application for leave to appeal. Mr Brown argued that the delay was due to his legal representatives not advising him of his right to appeal at the time of his sentencing. The court found that this explanation was insufficient to justify the significant delay in filing the application. The court further considered the merits of the appeal against the sentence, focusing on whether the sentence for trafficking was manifestly excessive. Although the prosecutor's misstatement about the scheduling of MDMA was noted, the court emphasised that the sentencing judge had correctly focused on the nature, extent, and seriousness of the offending rather than the specific types of drugs involved.

In light of the inadequate explanation for the delay in filing the application for leave to appeal and the poor prospects of successfully challenging the sentence, the court refused the application for an extension of time and dismissed the appeal. The court concluded that there was no adequate explanation for the delay and no sufficient grounds to interfere with the sentence imposed.

The court's final order was to refuse the application for an extension of time for leave to appeal.

Orders

Orders of the court

The application for an extension of time for leave to appeal is refused.

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

The sentence on the trafficking charge was the sole point of the proposed challenge to the sentence. No challenge was mounted to any other part of the sentences imposed.Conclusion For the reasons expressed above, there is no adequate explanation for the delay in filing the application for leave to appeal, and the prospects of successfully challenging the sentence imposed are poor. Consequently there is no reason to relieve Mr Brown from the consequences of not filing his application in time. I would refuse the application to extend time.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Brown [2015] QCA 225

Most Recent Citation

R v Connolly [2016] QCA 132

Cases citing this decision · 5 of 5 shown

R v Solway
[2023] QCA 267 Para 7

…The applicant relies upon R v Brown [2015] QCA 225, R v Boyd [2013] QCA 335 and R v Berry [2017] QCA 271.…
R v Nunn
[2019] QCA 100 Para 11

…rovide guidance … as a yard stick”[4] against which to examine the sentence. [3] R v Johnson [2014] QCA 79 at [45], [48], and [49]; R v Brown [2015] QCA 225 at [1], [2] and [46] – [47]; R v Abbott [2017] QCA 57 at [1], [23] and [25]; R v Castner [2018] QCA 265 at [1], [26] – [28], [33]; R v Dang [2018] QCA 331 at…
R v Bush (No 2)
[2018] QCA 46

…entencing judge’s discretion miscarried R v Bost [2014] QCA 264 , distinguished R v Brown [2015] QCA 225 , distinguished R v Christensen [2002] QCA 113 , distinguished Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) (2017) 91 ALJR 1063; [2017] HCA 41, cited R v Gordon [2016] QCA 10 , distinguished…
R v Stevens
[2017] QCA 61 Para 33

…His parole eligibility was after he had served four years. Two hundred days pre-sentence custody was considered but not declared. [375]See R v Brown [2015] QCA 225.…
R v Connolly
[2016] QCA 132 Para 9

…harsh to refuse to recognise that the applicant too is a victim of dangerous drugs.” [20]See R v Ahmetaj [2015] QCA 248 at [89]; R v Brown [2015] QCA 225 at [50]; R v Galeano [2013] QCA 51 at [141]. [21][2007] QCA 433 at [17] (citations omitted).…

View all 5 citing cases →

Cases cited in this decision · 16 of 16 shown

R v McGinniss
[2015] QCA 34 Para 12

…his possession. Mitigating features were urged, including that he had work, commenced rehabilitation had not reoffended while on two years bail. [30][2015] QCA 34 ( McGinniss ).…
R v Safi
[2015] QCA 13 Para 13

…nt sentencing decisions: see R v Galeano at [26]-[31], R v Ryan [2014] QCA 78 at [43]-[45], and R v Johnson at [43]-[46]. As I observed in R v Safi [2015] QCA 13 those analyses indicate that, whilst each sentence requires an exercise of discretion with reference to the facts and circumstances of the case, for su…
R v Johnson
[2014] QCA 79 Para 15

…entences that might have been imposed. [34][2007] QCA 433 ( Johnson ). This is not the same decision as was cited in McGinniss ; that R v Johnson was [2014] QCA 79.…
R v Ryan
[2014] QCA 78 Para 13

…Fraser JA said:[31] “The Court has recently analysed the relevant sentencing decisions: see R v Galeano at [26]-[31], R v Ryan [2014] QCA 78 at [43]-[45], and R v Johnson at [43]-[46]. As I observed in R v Safi [2015] QCA 13 those analyses indicate that, whilst each sentence requires an exercise of discretion wi…
R v Feakes
[2009] QCA 376 Para 21

…[19] and R v Feakes ,[20] were both cases where the trafficking was in a mix of schedule 1 and schedule 2 drugs. [19][2007] QCA 273 ( Assurson ). [20][2009] QCA 376 ( Feakes ).…
R v Raciti
[2004] QCA 359 Para 13

…CA 70; R v Assurson (2007) 174 A Crim R 78, [2007] QCA 273; Rodd ; R v Elizalde [2006] QCA 330; R v Bradforth [2003] QCA 183 and R v Raciti [2004] QCA 359 this Court noted that, absent extraordinary circumstances, in cases of trafficking in Sch 1 drugs on this scale mature offenders who have pleaded guilty can ex…
R v Johnson
[2007] QCA 433 Para 15

…son [34] which shows, in my view, that the nine years that Mr Brown received was well within the range of sentences that might have been imposed. [34][2007] QCA 433 ( Johnson ). This is not the same decision as was cited in McGinniss ; that R v Johnson was [2014] QCA 79.…
R v Assurson
[2007] QCA 273 Para 21

…judge referred to, R v Assurson [19] and R v Feakes ,[20] were both cases where the trafficking was in a mix of schedule 1 and schedule 2 drugs. [19][2007] QCA 273 ( Assurson ). [20][2009] QCA 376 ( Feakes ).…
Spencer v Hutson
[2007] QCA 178 Para 5

…es of not filing in time?[5] [3] R v Tait [1999] 2 Qd R 667 at [5]; Beil v Mansell (No 1) [2006] 2 Qd R 199 at 207-208; Spencer & Anor v Hutson & Ors [2007] QCA 178 at [28] ( Spencer ). [4] Chapman v State of Queensland [2003] QCA 172 at [3]; Queensland Trustees Limited v Fawckner [1964] Qd R 153 at 163-164. [5]…
R v Saunders
[2007] QCA 93 Para 8

…proffered, including Assurson ,[27] and R v Saunders ,[28] and the learned sentencing judge referred to Feakes [29] as well. [27][2007] QCA 273. [28][2007] QCA 93 ( Saunders ). [29][2009] QCA 376.…
R v Elizalde
[2006] QCA 330 Para 13

…motivated. After reviewing the cases of R v Kashton [2005] QCA 70; R v Assurson (2007) 174 A Crim R 78, [2007] QCA 273; Rodd ; R v Elizalde [2006] QCA 330; R v Bradforth [2003] QCA 183 and R v Raciti [2004] QCA 359 this Court noted that, absent extraordinary circumstances, in cases of trafficking in Sch 1 drugs o…
Beil v Mansell (No 1)
[2006] QCA 173

…s Misuse Amendment Act 2008 (Qld) Drugs Misuse Regulation 1987 (Qld) Beil v Mansell (No 1) [2006] 2 Qd R 199; [2006] QCA 173, cited Chapman v State of Queensland [2003] QCA 172, cited Queensland Trustees Limited v Fawckner [1964] Qd R 153, cited R v Assurson (2007) 174 A Crim R 78; [2007] QCA 273, considered R v…
R v Kashton
[2005] QCA 70 Para 13

…assed through his hands during the trafficking period. His trafficking was commercially motivated. After reviewing the cases of R v Kashton [2005] QCA 70; R v Assurson (2007) 174 A Crim R 78, [2007] QCA 273; Rodd ; R v Elizalde [2006] QCA 330; R v Bradforth [2003] QCA 183 and R v Raciti [2004] QCA 359 this Court…
R v Bradforth
[2003] QCA 183 Para 13

…cases of R v Kashton [2005] QCA 70; R v Assurson (2007) 174 A Crim R 78, [2007] QCA 273; Rodd ; R v Elizalde [2006] QCA 330; R v Bradforth [2003] QCA 183 and R v Raciti [2004] QCA 359 this Court noted that, absent extraordinary circumstances, in cases of trafficking in Sch 1 drugs on this scale mature offenders…
Chapman v State of Queensland
[2003] QCA 172 Para 5

…il v Mansell (No 1) [2006] 2 Qd R 199 at 207-208; Spencer & Anor v Hutson & Ors [2007] QCA 178 at [28] ( Spencer ). [4] Chapman v State of Queensland [2003] QCA 172 at [3]; Queensland Trustees Limited v Fawckner [1964] Qd R 153 at 163-164. [5] Spencer at [28]. Legal principles…
R v Tait
[1998] QCA 304

…ed R v McGinniss [2015] QCA 34, considered R v Saunders [2007] QCA 93, considered R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited Spencer & Anor v Hutson & Ors [2007] QCA 178, cited COUNSEL: S G Bain for the applicant C N Marco for the respondent SOLICITORS: Mulcahy Ryan Lawyers for the applicant Director of Pu…

Legislation cited in this decision · 2

Drugs Misuse Act 1986 (Qld)
5 2 mentions (from Para 1)
Drugs Misuse Amendment Act 2008 (Qld)
1 mention (from Para 17)

CITATION:	R v Brown [2015] QCA 225
PARTIES:	R v BROWN, Kieran Daniel (applicant)
FILE NO/S:	CA No 315 of 2014 SC No 993 of 2011 SC No 235 of 2013 SC No 278 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	Supreme Court at Brisbane – Unreported, 10 December 2013
DELIVERED ON:	13 November 2015
DELIVERED AT:	Brisbane
HEARING DATE:	9 June 2015
JUDGES:	Margaret McMurdo P and Gotterson and Morrison JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for an extension of time for leave to appeal is refused.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the application for leave to appeal was filed 11 months late – where the applicant’s only explanation for eight months of that delay was that his lawyers, at the time of his sentence, did not advise him that he could appeal – whether the explanation provided is adequate – whether an extension of time for leave to appeal should be granted APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to a number of drug related offences, including trafficking in methylamphetamine, MDMA and MDEA over a period of 19 months and was sentenced to nine years’ imprisonment for the trafficking – where the applicant’s offending was very serious and was committed, for the most part, while on bail – where the prosecutor, during sentencing submissions, informed the sentencing judge that MDMA is a Schedule 1 dangerous drug for the purpose of the Drugs Misuse Act 1986 (Qld) – where, in fact, MDMA was a Schedule 2 dangerous drug for a large part of the trafficking period – where the sentencing judge did not place emphasis on the types of drugs trafficked and, instead, focused on the nature, extent and seriousness of the offending – whether the sentence imposed on the trafficking count was manifestly excessive Drugs Misuse Act 1986 (Qld), s 5 , s 9 Drugs Misuse Amendment Act 2008 (Qld) Drugs Misuse Regulation 1987 (Qld) Beil v Mansell (No 1) [2006] 2 Qd R 199; [2006] QCA 173, cited Chapman v State of Queensland[2003] QCA 172, cited Queensland Trustees Limited v Fawckner [1964] Qd R 153, cited R v Assurson (2007) 174 A Crim R 78; [2007] QCA 273, considered R v Feakes[2009] QCA 376, considered R v Johnson[2007] QCA 433, considered R v McGinniss[2015] QCA 34, considered R v Saunders[2007] QCA 93, considered R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited Spencer & Anor v Hutson & Ors[2007] QCA 178, cited
COUNSEL:	S G Bain for the applicant C N Marco for the respondent
SOLICITORS:	Mulcahy Ryan Lawyers for the applicant Director of Public…