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 2013DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
Supreme Court at BrisbaneDELIVERED 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 dissentingORDERS:
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, consideredCOUNSEL:
The applicant appeared on his own behalf
B J Power for the respondentSOLICITORS:
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…
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- AGLC
- R v Church [2015] QCA 24
- Case
- [2015] QCA 24
- Decision Date
CaseChat Overview and Summary
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
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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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