R v Budd - [2012] QCA 120

SUPREME COURT OF QUEENSLAND

CITATION:

R v Budd [2012] QCA 120

PARTIES:

R
v
BUDD, Andrew Stephen
(applicant)

FILE NO/S:

CA No 19 of 2012
SC No 794 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

11 May 2012

DELIVERED AT:

Brisbane

HEARING DATE:

9 March 2012

JUDGES:

Fraser JA, Margaret Wilson AJA and Applegarth J
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 applicant pleaded guilty to 28 counts of supplying a dangerous drug and one count of producing a dangerous drug and sentenced to a concurrent term of 18 months imprisonment – where applicant was also sentenced to a concurrent term of six months imprisonment for one count of possessing a thing used for production of a dangerous thing – where applicant had history of drug-related offending – where applicant committed further offences whilst on bail – where applicant assisted in the production of methylamphetamine – where applicant was involved in a lower level capacity in production – where sentencing judge extended leniency to applicant for admissions made – where sentencing judge took into account mental health considerations pertaining to applicant – where psychologist considered applicant’s risk of re-offending was closely related to his risk of continuing to use illicit substances – where applicant argued that a non-custodial sentence was open and should have been imposed – where applicant argued that sentencing judge’s discretion miscarried due to parity considerations – whether the sentencing judge erred in not giving sufficient weight to imprisonment being a last resort – whether the sentencing judge failed to give sufficient weight to the applicant’s addiction being the cause of his offending – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9(2)

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited
Green v The Queen; Quinn v The Queen (2011) 86 ALJR 36; [2011] HCA 49, considered
R v Hammond [1997] 2 Qd R 195; [1996] QCA 508, cited
R v LY[2008] QCA 76, considered

COUNSEL:

D C Shepherd for the applicant
S P Vasta for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: On 18 January 2012 the applicant was convicted on his pleas of guilty and sentenced to concurrent terms of imprisonment of 18 months for 28 counts (counts 1-27 and 29) of supplying a dangerous drug and one count (count 28) of producing a dangerous drug. He was sentenced to a concurrent term of imprisonment for six months on one count (count 31) of possessing a thing used for production of a dangerous drug. The Crown did not proceed on count 30, which…

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 Budd

Details

AGLC: R v Budd [2012] QCA 120
Case: [2012] QCA 120
Decision Date: 11 May 2012

CaseChat Overview and Summary

In the case of R v Budd, the applicant, who had pleaded guilty to 28 counts of supplying a dangerous drug, one count of producing a dangerous drug, and one count of possessing a thing used for the production of a dangerous thing, was sentenced to a concurrent term of 18 months imprisonment for the drug offences and a concurrent term of six months imprisonment for the possession charge. The applicant, who had a history of drug-related offending and committed further offences while on bail, argued that the sentence was manifestly excessive and that a non-custodial sentence should have been imposed. The applicant also contended that the sentencing judge failed to adequately consider the principle of parity and the fact that imprisonment should be a last resort, as well as the applicant's addiction being the cause of his offending.

The legal issues before the court were whether the sentencing judge erred in not giving sufficient weight to imprisonment being a last resort and whether the sentencing judge failed to give sufficient weight to the applicant's addiction being the cause of his offending. The court also considered whether the sentence was manifestly excessive. The court noted that the sentencing judge had taken into account the applicant's admissions, mental health considerations, and his lower-level involvement in the production of methylamphetamine. The court found that the sentencing judge had given appropriate consideration to the relevant factors and that the sentence imposed was not manifestly excessive.

The court held that the sentencing judge had not erred in their assessment of the appropriate sentence, and that the applicant's arguments did not establish that the sentence was manifestly excessive or that a non-custodial sentence should have been imposed. The court found that the sentencing judge had appropriately exercised their discretion and that there were no grounds for interference with the sentence. Consequently, the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

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 Budd [2012] QCA 120
PARTIES:	R v BUDD, Andrew Stephen (applicant)
FILE NO/S:	CA No 19 of 2012 SC No 794 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	11 May 2012
DELIVERED AT:	Brisbane
HEARING DATE:	9 March 2012
JUDGES:	Fraser JA, Margaret Wilson AJA and Applegarth J 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 applicant pleaded guilty to 28 counts of supplying a dangerous drug and one count of producing a dangerous drug and sentenced to a concurrent term of 18 months imprisonment – where applicant was also sentenced to a concurrent term of six months imprisonment for one count of possessing a thing used for production of a dangerous thing – where applicant had history of drug-related offending – where applicant committed further offences whilst on bail – where applicant assisted in the production of methylamphetamine – where applicant was involved in a lower level capacity in production – where sentencing judge extended leniency to applicant for admissions made – where sentencing judge took into account mental health considerations pertaining to applicant – where psychologist considered applicant’s risk of re-offending was closely related to his risk of continuing to use illicit substances – where applicant argued that a non-custodial sentence was open and should have been imposed – where applicant argued that sentencing judge’s discretion miscarried due to parity considerations – whether the sentencing judge erred in not giving sufficient weight to imprisonment being a last resort – whether the sentencing judge failed to give sufficient weight to the applicant’s addiction being the cause of his offending – whether the sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 9(2) AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited Green v The Queen; Quinn v The Queen (2011) 86 ALJR 36; [2011] HCA 49, considered R v Hammond [1997] 2 Qd R 195; [1996] QCA 508, cited R v LY[2008] QCA 76, considered
COUNSEL:	D C Shepherd for the applicant S P Vasta for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent