R v Cairns - [2011] QCA 145

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cairns [2011] QCA 145

PARTIES:

R
v
CAIRNS, David Allan
(applicant)

FILE NO/S:

CA No 65 of 2011
SC No 989 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

24 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

1 June 2011

JUDGES:

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

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted of one count of trafficking cannabis, five counts of supplying cannabis, one count of possession of cannabis in excess of 500 grams, one count of possession of MDMA, and one count of possession of things used in connection with trafficking – where a head sentence of four years imprisonment with a parole eligibility date after serving 16 months was imposed – where the applicant showed evidence of rehabilitation by not re-offending during a significant delay between the date he was charged and the date of sentence – where a related offender was sentenced to three years imprisonment with release on parole after serving 12 months and the applicant’s co-offender was sentenced to four years imprisonment suspended after three months – where the sentencing judge stated a notional sentence which would have been imposed if not for the applicant’s early plea of guilty – whether the sentence imposed was manifestly excessive

R v Brienza [2010] QCA 15, cited
R v Broad & Prior [2010] QCA 53, cited
R v Collins [2009] QCA 387, considered
R v Haygarth [1995] QCA 403, cited
R v L; ex parte A-G (Qld) [1996] 2 Qd R 63; [1995] QCA 444, considered
R v Parsons & Sanders [1999] QCA 402, cited
R v Whyte[2003] QCA 56, cited

COUNSEL:

M J Byrne QC for the applicant
R G Martin SC for the respondent

SOLICITORS:

A W Bale and Son Solicitors for the applicant
Director of Public Prosecutions (Queensland) for the respondent

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

[2] FRASER JA: The applicant was convicted on his pleas of guilty of one count of carrying on the business of unlawfully trafficking in the dangerous drug cannabis, five counts of unlawfully supplying that dangerous drug, one count of possession of that dangerous drug with the circumstance of aggravation that the quantity of the drug exceeded 500 grams, one count of possession of the dangerous drug 3,4‑methylenedioxymethamphetamine (MDMA), and one count of possession of things (mobile telephones) used in connection with the crime of trafficking. On 5 April 2011, a sentence of four years imprisonment was imposed for the trafficking offence. Lesser, concurrent terms of imprisonment were imposed for the offences…

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 Cairns

Details

AGLC: R v Cairns [2011] QCA 145
Case: [2011] QCA 145
Decision Date: 24 June 2011

CaseChat Overview and Summary

The case of R v Cairns involved an appeal against the sentence imposed by the Court of Appeal. The applicant was convicted of various drug-related offences, including trafficking and supplying cannabis, as well as possession of MDMA and related trafficking paraphernalia. The court was tasked with determining whether the sentence imposed was manifestly excessive or inadequate, given the circumstances of the case.

The primary legal issue was whether the sentence imposed was manifestly excessive, considering the evidence of rehabilitation presented by the applicant and the sentences given to related offenders. The applicant argued that the sentence was disproportionately harsh when compared to the sentences of others involved in similar criminal activities. The court had to consider whether the sentence imposed was so excessive as to shock the conscience of the court, warranting an appeal and potential modification of the sentence.

In reaching its decision, the court examined the sentencing principles applicable to drug trafficking offences, the role of early guilty pleas, and the need for deterrence and denunciation. The court noted the significant delay between the applicant’s arrest and sentencing, during which he had not re-offended, suggesting a degree of rehabilitation. However, the court also considered the seriousness of the offences and the need to maintain public confidence in the criminal justice system. Ultimately, the court found that the sentence imposed, while severe, was not manifestly excessive. The court held that the sentence was within the range of appropriate penalties for the crimes committed, taking into account the evidence of rehabilitation and the sentences of related offenders.

The court dismissed the application for leave to appeal against the sentence. The applicant's argument that the sentence was manifestly excessive was not upheld, and the original sentence remained in place.

Orders

Orders of the court

The application for leave to appeal against sentence is 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 Cairns [2011] QCA 145
PARTIES:	R v CAIRNS, David Allan (applicant)
FILE NO/S:	CA No 65 of 2011 SC No 989 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	24 June 2011
DELIVERED AT:	Brisbane
HEARING DATE:	1 June 2011
JUDGES:	Muir and Fraser JJA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted of one count of trafficking cannabis, five counts of supplying cannabis, one count of possession of cannabis in excess of 500 grams, one count of possession of MDMA, and one count of possession of things used in connection with trafficking – where a head sentence of four years imprisonment with a parole eligibility date after serving 16 months was imposed – where the applicant showed evidence of rehabilitation by not re-offending during a significant delay between the date he was charged and the date of sentence – where a related offender was sentenced to three years imprisonment with release on parole after serving 12 months and the applicant’s co-offender was sentenced to four years imprisonment suspended after three months – where the sentencing judge stated a notional sentence which would have been imposed if not for the applicant’s early plea of guilty – whether the sentence imposed was manifestly excessive R v Brienza [2010] QCA 15, cited R v Broad & Prior [2010] QCA 53, cited R v Collins [2009] QCA 387, considered R v Haygarth [1995] QCA 403, cited R v L; ex parte A-G (Qld) [1996] 2 Qd R 63; [1995] QCA 444, considered R v Parsons & Sanders [1999] QCA 402, cited R v Whyte[2003] QCA 56, cited
COUNSEL:	M J Byrne QC for the applicant R G Martin SC for the respondent
SOLICITORS:	A W Bale and Son Solicitors for the applicant Director of Public Prosecutions (Queensland) for the respondent