Supreme Court at Brisbane – Date of Sentence: 1 June 2015 (Philippides J)
DELIVERED ON:
23 March 2018
DELIVERED AT:
Brisbane
HEARING DATE:
26 July 2017
JUDGES:
Sofronoff P and Morrison JA and Douglas J
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 – where the applicant was convicted after trial of trafficking in MDMA, methylamphetamine and cannabis on count one – where the applicant was 31 to 39 years of age at the time of the offending – where the period of trafficking was four years – where the applicant was sentenced to imprisonment for 13 years – where the applicant contends the sentencing judge failed to have regard to comparable cases – where comparable cases were distinguished with regard to whether an early plea of guilty was made, the level of trafficking, the length of the trafficking period and the age of the offender – whether the sentence was manifestly excessive
CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – GENERAL PRINCIPLES – where the applicant contends the sentencing judge erred in finding the applicant had engaged in trafficking activities over a particular period of time – where it was submitted that there was not an adequate evidentiary basis for that finding – where the sentencing judge was prepared to act on the evidence of a particular witness – where the credibility of that witness was contested – whether it was open to the sentencing judge to make that finding of fact
CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – GENERAL PRINCIPLES – where a schedule of facts was used at the sentence hearing which added to the facts established at the trial – where the applicant contends facts which were not established by the evidence at trial were placed before the sentencing judge – where it was contended that these additional facts were inadmissible – where the sentencing judge did not in fact refer to those facts in contention – where the sentencing judge used their discretion to determine facts relevant to the sentencing – whether the sentencing judge’s discretion miscarried
[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.
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Details
AGLC
R v Bush (No 2) [2018] QCA 46
Case
[2018] QCA 46
Decision Date
CaseChat Overview and Summary
The case of R v Bush (No 2) involves an appeal against sentence by the applicant, who was convicted of trafficking in MDMA, methylamphetamine, and cannabis. The applicant, aged between 31 and 39 years at the time of the offending, was sentenced to 13 years imprisonment following a trial. The applicant contested the severity of the sentence, arguing that it was manifestly excessive, and further contended that the sentencing judge failed to consider comparable cases, as well as erred in finding that the trafficking activities spanned a particular period of time. The applicant also argued that the sentence hearing was unfair as it included a schedule of facts that was not established at trial and was inadmissible.
The court was required to determine whether the sentence was manifestly excessive and if the sentencing judge's discretion miscarried by considering additional facts that were not established at trial. The court considered the nature of the offence, the length of the trafficking period, the age of the offender, and whether the sentencing judge adequately took into account comparable cases. The court also examined the credibility of the evidence presented at the sentencing hearing and whether the judge was justified in acting on the evidence of a particular witness.
The court found that the sentence was not manifestly excessive, as the sentencing judge had considered comparable cases and made findings based on the specific circumstances of the applicant's offending. The court held that it was open to the sentencing judge to make factual findings regarding the length of the trafficking period, despite the contested credibility of the evidence. Additionally, the court concluded that the sentencing judge's discretion did not miscarry, as the additional facts presented at the sentencing hearing were not relied upon by the judge in determining the sentence.
The court refused the applicant's application for leave to appeal against sentence.
Orders
Orders of the court
Application for leave to appeal against sentence refused.