R v Burrell - [2013] QCA 41

SUPREME COURT OF QUEENSLAND

CITATION:

R v Burrell [2013] QCA 41

PARTIES:

R
v
BURRELL, Mathew John
(applicant)

FILE NO/S:

CA No 165 of 2012
SC No 39 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

12 March 2013

DELIVERED AT:

Brisbane

HEARING DATE:

28 February 2013

JUDGES:

Muir and Fraser JJA and Martin J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application 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 one count of trafficking in the dangerous drug methylamphetamine – where the applicant also pleaded guilty to six summary offences and counts in an ex-officio indictment – where the applicant was sentenced to six years imprisonment for the trafficking offence with parole eligibility after serving one third of the sentence – where the period of drug trafficking to which the applicant pleaded guilty was inconsistent with the schedule of facts tendered at the sentence hearing – whether the sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where the applicant contended his sentence was not consistent with the sentence imposed on one of his co‑offenders, Foley – where the applicant had an extensive criminal history and greater culpability than Foley – where the applicant was responsible for distributing drugs at street level and provided input into decisions made by one of his co‑offenders, Betts – whether the sentence was manifestly excessive in comparison to his co-offender

Drugs Misuse Act 1986 (Qld), s 5

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited
Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67, cited
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, considered
R v Barton[2006] QCA 367, considered
R v Cooney; ex parte A-G (Qld)[2008] QCA 414, considered
R v Raciti[2004] QCA 359, considered
R v Rizk[2004] QCA 382, considered
R v Tout[2012] QCA 296, considered

COUNSEL:

The applicant appeared on his own behalf
B J Merrin for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: I agree that the application should be refused for the reasons given by Fraser JA.

FRASER JA: On 15 June 2012 the applicant pleaded guilty to one count of trafficking in the dangerous drug methylamphetamine and other dangerous drugs. That offence was charged against both the applicant and one of his co-offenders, Betts, who pleaded guilty at the same hearing. The applicant also pleaded guilty to counts in an ex‑officio indictment against him alone of unlawful possession of the dangerous drug methylamphetamine and unlawful possession of the dangerous drug cannabis and…

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 Burrell

Details

AGLC: R v Burrell [2013] QCA 41
Case: [2013] QCA 41
Decision Date: 12 March 2013

CaseChat Overview and Summary

In the case of R v Burrell, the applicant appealed against his sentence of six years imprisonment for trafficking in the dangerous drug methylamphetamine, with parole eligibility after serving one third of the sentence. The applicant had also pleaded guilty to six summary offences and counts in an ex-officio indictment. The applicant argued that the sentence was manifestly excessive and did not account for the inconsistency between the period of drug trafficking to which he pleaded guilty and the schedule of facts tendered at the sentence hearing. The applicant also contended that his sentence was not consistent with the sentence imposed on his co‑offender, Foley, as he had an extensive criminal history and greater culpability than Foley.

The court considered whether the sentence was manifestly excessive or inadequate. It examined the inconsistency between the period of drug trafficking and the schedule of facts, as well as the parity between the sentences of the applicant and his co‑offender. The court noted that the applicant had an extensive criminal history and had been involved in distributing drugs at street level, as well as providing input into decisions made by one of his co‑offenders, Betts. However, the court found that the sentence imposed was not manifestly excessive or inadequate, and that there was no basis for interfering with the sentence on the grounds of parity between co‑offenders.

The court dismissed the applicant's appeal against his sentence. It held that the sentence imposed was not manifestly excessive or inadequate, and that there was no basis for interfering with the sentence on the grounds of parity between co‑offenders. The court found that the sentence reflected the seriousness of the offence and the applicant's criminal history. The court also noted that the applicant had not raised any other grounds for interference with the sentence. The application was therefore refused.

Orders

Orders of the court

Application 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Burrell [2013] QCA 41
PARTIES:	R v BURRELL, Mathew John (applicant)
FILE NO/S:	CA No 165 of 2012 SC No 39 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED ON:	12 March 2013
DELIVERED AT:	Brisbane
HEARING DATE:	28 February 2013
JUDGES:	Muir and Fraser JJA and Martin J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application 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 one count of trafficking in the dangerous drug methylamphetamine – where the applicant also pleaded guilty to six summary offences and counts in an ex-officio indictment – where the applicant was sentenced to six years imprisonment for the trafficking offence with parole eligibility after serving one third of the sentence – where the period of drug trafficking to which the applicant pleaded guilty was inconsistent with the schedule of facts tendered at the sentence hearing – whether the sentence was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where the applicant contended his sentence was not consistent with the sentence imposed on one of his co‑offenders, Foley – where the applicant had an extensive criminal history and greater culpability than Foley – where the applicant was responsible for distributing drugs at street level and provided input into decisions made by one of his co‑offenders, Betts – whether the sentence was manifestly excessive in comparison to his co-offender Drugs Misuse Act 1986 (Qld), s 5 AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67, cited Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, considered R v Barton[2006] QCA 367, considered R v Cooney; ex parte A-G (Qld)[2008] QCA 414, considered R v Raciti[2004] QCA 359, considered R v Rizk[2004] QCA 382, considered R v Tout[2012] QCA 296, considered
COUNSEL:	The applicant appeared on his own behalf B J Merrin for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent