R v Collins - [2009] QCA 387

SUPREME COURT OF QUEENSLAND

CITATION:

R v Collins [2009] QCA 387

PARTIES:

R
v
COLLINS, Barry Keith
(applicant)

FILE NO/S:

CA No 254 of 2009
SC No 1370 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

4 December 2009

JUDGES:

Keane and Holmes JJA and M Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to one count of trafficking in cannabis – where applicant sentenced to four years imprisonment, suspended after six months, for an operational period of four years –where co-offender (his ex-wife) sentenced to four years imprisonment, wholly suspended – where applicant sentenced three years after being charged; pleaded to an ex officio indictment; 59 years old; had no relevant criminal history; had expanded his legitimate business since being charged; and provided information to police – whether sentencing judge gave factors of co-operation, delay and parity sufficient recognition – whether sentence manifestly excessive

R v Erskine [2009] 2 Cr App R 29; [2009] EWCA Crim 1425, cited
R v Haygarth [1995] QCA 403, cited
R v Whyte[2003] QCA 56, cited

COUNSEL:

A J Kimmins, with Y Chekirova, for the applicant
M R Byrne SC for the respondent

SOLICITORS:

Potts Lawyers for the applicant
Director of Public Prosecutions for the respondent

KEANE JA: I have had the advantage of reading a draft of the reasons for judgment prepared by Holmes JA. I agree with her Honour’s reasons and with the orders proposed by her.

HOLMES JA: The applicant seeks leave to appeal his sentence of four years imprisonment, suspended after six months with an operational period of four years, imposed in respect of one count of trafficking in a dangerous drug (cannabis) over a three month period in 2006. The grounds for the application are that the sentence was manifestly excessive and that the learned sentencing judge erred by failing to give adequate consideration to the applicant’s co-operation, the delay in his sentencing, the period since the offence during which he had not offended further, and the issue of parity with the sentence imposed on the applicant’s co-offender, his ex-wife.

The applicant’s representatives filed a list of authorities extending to 17 cases in respect of this appeal, many of which (for example, House v The King[1]) served only to state uncontentious principles which appellate courts apply on a daily basis. The temptation towards excessive citation should be resisted. Some useful guidance can be obtained from the recent decision of the English Court of Appeal, Criminal Division, in R v Erskine.[2] It should, however, be said that counsel in his oral submissions confined himself, in the main, to citing passages from…

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 Collins

Details

AGLC: R v Collins [2009] QCA 387
Case: [2009] QCA 387
Decision Date: 15 December 2009

CaseChat Overview and Summary

The applicant, Collins, was charged with trafficking in cannabis and pleaded guilty to one count. He was sentenced to four years imprisonment, suspended after six months, for an operational period of four years. His co-offender, his ex-wife, received a wholly suspended sentence of four years. The applicant, who was 59 years old at the time of sentencing, had no prior criminal history. He had expanded his legitimate business since being charged and provided information to the police. The applicant sought leave to appeal against his sentence, arguing it was manifestly excessive.

The primary legal issue before the court was whether the sentencing judge adequately considered the factors of cooperation, delay, and parity. The applicant contended that the delay of three years between being charged and being sentenced, his cooperation with the police, and the disparity in sentencing between him and his co-offender warranted a more lenient sentence. The court had to assess whether these factors were appropriately weighed by the sentencing judge, and if the sentence imposed was manifestly excessive or inadequate.

The court found that the sentencing judge had given due consideration to the factors of cooperation, delay, and parity. It was noted that the delay in the proceedings was due to the complexity of the case and the applicant's plea to an ex officio indictment. The court emphasised that the applicant's age and lack of criminal history were significant mitigating factors, but they did not outweigh the seriousness of the offence. The court concluded that the sentence was not manifestly excessive, and the application for leave to appeal against the sentence was dismissed.

No further orders were made by the court. The dismissal of the application for leave to appeal meant that the original sentence stood, and the applicant was required to serve six months of his four-year sentence, with the remaining three years and four months suspended for an operational period of four years.

Orders

Orders of the court

Application for leave to appeal against sentence 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 Collins [2009] QCA 387
PARTIES:	R v COLLINS, Barry Keith (applicant)
FILE NO/S:	CA No 254 of 2009 SC No 1370 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	15 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	4 December 2009
JUDGES:	Keane and Holmes JJA and M Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to one count of trafficking in cannabis – where applicant sentenced to four years imprisonment, suspended after six months, for an operational period of four years –where co-offender (his ex-wife) sentenced to four years imprisonment, wholly suspended – where applicant sentenced three years after being charged; pleaded to an ex officio indictment; 59 years old; had no relevant criminal history; had expanded his legitimate business since being charged; and provided information to police – whether sentencing judge gave factors of co-operation, delay and parity sufficient recognition – whether sentence manifestly excessive R v Erskine [2009] 2 Cr App R 29; [2009] EWCA Crim 1425, cited R v Haygarth [1995] QCA 403, cited R v Whyte[2003] QCA 56, cited
COUNSEL:	A J Kimmins, with Y Chekirova, for the applicant M R Byrne SC for the respondent
SOLICITORS:	Potts Lawyers for the applicant Director of Public Prosecutions for the respondent