R v Church - [2015] QCA 24

SUPREME COURT OF QUEENSLAND

CITATION:

R v Church [2015] QCA 24

PARTIES:

R
v
CHURCH, Russell John
(applicant)

FILE NO/S:

CA No 207 of 2014
SC No 694 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

3 March 2015

DELIVERED AT:

Brisbane

HEARING DATE:

12 February 2015

JUDGES:

Fraser, Morrison and Philippides JJA
Separate reasons for judgment of each member of the Court, Fraser and Philippides JJA concurring as to the orders made, Morrison JA dissenting

ORDERS:

1.    Leave to appeal be granted in respect of the sentence imposed on 14 July 2014 on count 1.

2.    The sentence imposed on count 1 be set aside and in lieu thereof impose a concurrent sentence of six years imprisonment.

3.    The applicant’s parole eligibility date be fixed at 14 July 2016.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – SPECIFIC ERROR – where the applicant pleaded guilty to one count of trafficking in cannabis and methylamphetamine and other lesser drug offences – where the applicant was sentenced to seven years imprisonment with parole eligibility after two years and six months for the trafficking count – where error as to the nature of the drugs trafficked was demonstrated – where the sentencing discretion was exercised afresh – where the applicant trafficked in significant amounts of cannabis and at a low level in methylamphetamine during a period of over three months – where the applicant trafficked to feed his drug dependency – where the applicant entered pleas

Kentwellv The Queen (2014) 88 ALJR 947; [2014] HCA 37, followed
R v Brienza[2010] QCA 15, considered
R v Hennig[2010] QCA 244, considered
R v Salter[2010] QCA 284, considered
R v Wallace[2008] QCA 135, considered

COUNSEL:

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

SOLICITORS:

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

FRASER JA: I agree with the reasons for judgment of Philippides JA and the orders proposed by her Honour.
MORRISON JA: I have had the advantage of reading the reasons prepared by Philippides JA. In paragraphs [26]–[52] her Honour deals with the circumstances of the offence, the submissions and sentencing remarks below, and the submissions on appeal. Accepting what is said in those paragraphs permits me to express my reasons in shorter form than would otherwise be the case.
Did the sentence proceed on the basis of a factual error as to the drugs trafficked?
In paragraph [53] of her reasons Philippides JA concludes that the learned sentencing judge fell into error in stating that a third drug was trafficked, when setting out the circumstances of the trafficking for which the applicant was being sentenced. For the reasons which follow I respectfully find myself unable to agree with that conclusion.
The prosecution tendered, by consent, a…

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 Church

Details

AGLC: R v Church [2015] QCA 24
Case: [2015] QCA 24
Decision Date: 3 March 2015

CaseChat Overview and Summary

In the case of R v Church, the applicant appealed against the sentence imposed by the County Court of Victoria. The applicant had pleaded guilty to trafficking in cannabis and methylamphetamine, as well as other related drug offences. The primary issue for the court was whether the sentence imposed was manifestly excessive or inadequate, taking into account the error regarding the nature of the drugs trafficked.

The court considered whether the sentence was excessive, noting the applicant's role in trafficking significant amounts of cannabis and small amounts of methylamphetamine over a three-month period, driven by his drug dependency. The court also noted that the applicant had pleaded guilty, which could be a mitigating factor. The court examined whether the sentencing error materially affected the sentence, and whether the sentence was inappropriate in light of the circumstances.

After considering the relevant factors, the Court of Appeal found that the original sentence was manifestly excessive. The court granted leave to appeal and set aside the original sentence, imposing a concurrent sentence of six years imprisonment instead, with parole eligibility set for 14 July 2016. This decision reflects the court's consideration of the nature of the offence, the applicant's plea, and the impact of the sentencing error on the overall sentence.

Orders

Orders of the court

1. Leave to appeal be granted in respect of the sentence imposed on 14 July 2014 on count 1.

2. The sentence imposed on count 1 be set aside and in lieu thereof impose a concurrent sentence of six years imprisonment.

3. The applicant’s parole eligibility date be fixed at 14 July 2016.

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 Church [2015] QCA 24
PARTIES:	R v CHURCH, Russell John (applicant)
FILE NO/S:	CA No 207 of 2014 SC No 694 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	3 March 2015
DELIVERED AT:	Brisbane
HEARING DATE:	12 February 2015
JUDGES:	Fraser, Morrison and Philippides JJA Separate reasons for judgment of each member of the Court, Fraser and Philippides JJA concurring as to the orders made, Morrison JA dissenting
ORDERS:	1. Leave to appeal be granted in respect of the sentence imposed on 14 July 2014 on count 1. 2. The sentence imposed on count 1 be set aside and in lieu thereof impose a concurrent sentence of six years imprisonment. 3. The applicant’s parole eligibility date be fixed at 14 July 2016.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – SPECIFIC ERROR – where the applicant pleaded guilty to one count of trafficking in cannabis and methylamphetamine and other lesser drug offences – where the applicant was sentenced to seven years imprisonment with parole eligibility after two years and six months for the trafficking count – where error as to the nature of the drugs trafficked was demonstrated – where the sentencing discretion was exercised afresh – where the applicant trafficked in significant amounts of cannabis and at a low level in methylamphetamine during a period of over three months – where the applicant trafficked to feed his drug dependency – where the applicant entered pleas Kentwellv The Queen (2014) 88 ALJR 947; [2014] HCA 37, followed R v Brienza[2010] QCA 15, considered R v Hennig[2010] QCA 244, considered R v Salter[2010] QCA 284, considered R v Wallace[2008] QCA 135, considered
COUNSEL:	The applicant appeared on his own behalf B J Power for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent