R v Coleman - [2006] QCA 442

SUPREME COURT OF QUEENSLAND

CITATION:

R v Coleman [2006] QCA 442

PARTIES:

R
v
COLEMAN, Kyle George
(applicant)

FILE NO/S:

CA No 213 of 2006
SC No 43 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

3 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

20 October 2006

JUDGES:

Jerrard and Keane JJA and Philip McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal dismissed

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - OTHER OFFENCES - applicant pleaded guilty to trafficking in the dangerous drug methylamphetamine - applicant sentenced to imprisonment for four years, cumulative upon a term of 18 months imprisonment previously imposed - learned sentencing judge recommended applicant be eligible for parole as from 1 September 2008 - applicant had been trafficking for four and a half months - applicant continued to traffick while subject to terms of a suspended sentence - applicant had extensive criminal history - high level of cooperation with police - applicant father of seven children - whether sentence is manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 156A

R v Bellino [1999] QCA 106; (1999) 105 A Crim R 137, considered
R v Taylor [2005] QCA 379; CA No 192 of 2005, 14 October 2005, cited

COUNSEL:

The applicant appeared on his own behalf
M J Copley for the respondent

SOLICITORS:

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

JERRARD JA: In this application I respectfully agree with Keane JA.

KEANE JA:
On 21 July 2006, the applicant was convicted, on his plea of guilty, of trafficking in the dangerous drug methylamphetamine between 1 May 2005 and 16 September 2005. The applicant was sentenced to imprisonment for four years, with that term to commence at the conclusion of a term of 18 months imprisonment which had been imposed by the District Court on 2 February 2006. The learned sentencing judge recommended that the applicant be eligible for parole as from

1 September 2008.

The applicant seeks leave to appeal against this sentence on the ground that it is manifestly excessive.

Circumstances of the offence

The applicant was arrested on 15 September 2005 when he admitted that he was about to receive 56 grams of methylamphetamine concealed in a tube of grease from a truck driver at Mount Isa. He told police that he had "picked up" a similar quantity of the drug from the same truck driver a week earlier.

The applicant told police that, over the previous four and a half months, he had been receiving one to two ounces (that is, 28 to 56 grams) of the drug once a week for which he paid $5,000 per…

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 Coleman

Details

AGLC: R v Coleman [2006] QCA 442
Case: [2006] QCA 442
Decision Date: 3 November 2006

CaseChat Overview and Summary

The applicant appealed against his sentence for trafficking in methylamphetamine, arguing it was manifestly excessive. The court had to consider whether the sentence imposed by the learned sentencing judge was too severe, given the applicant's criminal history, the duration of his involvement in drug trafficking, and his cooperation with law enforcement. The applicant had been trafficking for four and a half months, continuing even while subject to a suspended sentence, but he had a significant criminal record and was the father of seven children. The sentencing judge had recommended the applicant be eligible for parole from 1 September 2008.

The court considered the statutory framework for sentencing under the Penalties and Sentences Act 1992 and relevant case law, including R v Bellino and R v Taylor. The court noted that the applicant had a substantial criminal history and had engaged in drug trafficking for a relatively short period. However, the court also recognised the applicant's cooperation with police and his role as a father. The court had to weigh these factors against the seriousness of the offence and the need for deterrence and denunciation.

After considering the arguments and the applicable legal principles, the court determined that the sentence was not manifestly excessive. The court found that the sentencing judge had appropriately considered all relevant factors and that the sentence reflected the gravity of the offence. The court also noted that the applicant's criminal history and the short duration of his involvement in drug trafficking were significant mitigating factors. The appeal was dismissed, and the applicant's sentence was upheld.

Orders

Orders of the court

Application for leave to appeal dismissed

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 Coleman [2006] QCA 442
PARTIES:	R v COLEMAN, Kyle George (applicant)
FILE NO/S:	CA No 213 of 2006 SC No 43 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED ON:	3 November 2006
DELIVERED AT:	Brisbane
HEARING DATE:	20 October 2006
JUDGES:	Jerrard and Keane JJA and Philip McMurdo J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal dismissed
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - OTHER OFFENCES - applicant pleaded guilty to trafficking in the dangerous drug methylamphetamine - applicant sentenced to imprisonment for four years, cumulative upon a term of 18 months imprisonment previously imposed - learned sentencing judge recommended applicant be eligible for parole as from 1 September 2008 - applicant had been trafficking for four and a half months - applicant continued to traffick while subject to terms of a suspended sentence - applicant had extensive criminal history - high level of cooperation with police - applicant father of seven children - whether sentence is manifestly excessive Penalties and Sentences Act 1992 (Qld), s 156A R v Bellino [1999] QCA 106; (1999) 105 A Crim R 137, considered R v Taylor [2005] QCA 379; CA No 192 of 2005, 14 October 2005, cited
COUNSEL:	The applicant appeared on his own behalf M J Copley for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent