R v Davenport - [2018] QCA 330

SUPREME COURT OF QUEENSLAND

CITATION:

R v Davenport [2018] QCA 330

PARTIES:

R
v
DAVENPORT, Douglas James
(applicant)

FILE NO/S:

CA No 24 of 2018
SC No 1402 of 2016
SC No 1525 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 15 January 2018 (Martin J)

DELIVERED ON:

30 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

22 August 2018

JUDGES:

Morrison and Philippides and McMurdo JJA

ORDER:

The application for leave to appeal be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – where the applicant pleaded guilty to a number of serious drug offences – where the applicant was sentenced to an overall period of imprisonment of 11 years and nine months – where the longest term of imprisonment was nine years and nine months imposed for an offence of trafficking in methylamphetamine and heroin – where no parole eligibility date was set – where the applicant’s trafficking was part of an enterprise directed by Dang – where the applicant was subordinate to Dang, but still engaged in the trafficking at a “managerial level” – where Dang was sentenced to 10 years and six months’ imprisonment, attracting a serious violent offence declaration and a non-parole period of 80 per cent of the head sentence –where the applicant supplied drugs to Cao – where Cao was sentenced for trafficking to nine years’ imprisonment, with an early parole eligibility date taking into account time spent in immigration detention – where Cao’s trafficking was not part of the same enterprise as the applicant’s – whether there was disparity between the sentence imposed on the applicant for the trafficking offence and the sentences imposed on Cao and Dang

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – OTHER MATTERS – where the applicant engaged in drug trafficking to support his own addiction – where there was evidence at the time of sentence that the applicant had been collecting methadone prescriptions, working full time and volunteering – where the sentencing judge remarked that the applicant’s reoffending on bail suggested that his prospects of rehabilitation were not obvious – where the sentencing judge reduced the notional head sentence to take into account undeclarable presentence custody and other mitigating factors – whether the sentencing judge gave insufficient discount for the applicant’s plea of guilty and prospects of rehabilitation

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, cited
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited
R v Carlisle[2017] QCA 258, considered
R v KAQ; Ex parte Attorney-General (Qld) (2015) 253 A Crim R 201; [2015] QCA 98, cited

COUNSEL:

M Horvath with B K Buckley for the applicant
C Cook for the respondent

SOLICITORS:

Dib & Associates for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA:

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 Davenport

Details

AGLC: R v Davenport [2018] QCA 330
Case: [2018] QCA 330
Decision Date: 30 November 2018

CaseChat Overview and Summary

The case of R v Davenport involved the applicant who had pleaded guilty to serious drug offences, including trafficking in methylamphetamine and heroin. The applicant was sentenced to an overall imprisonment period of 11 years and nine months, with the longest term being nine years and nine months for the trafficking offence. The applicant's trafficking activities were part of an enterprise directed by Dang, and although the applicant was subordinate to Dang, they operated at a managerial level within the trafficking operation. Comparatively, Dang received a sentence of 10 years and six months, with an 80 per cent non-parole period, while Cao, who was involved in separate trafficking activities, was sentenced to nine years with an early parole eligibility date. The applicant argued that there was a disparity in sentencing between their case and those of Cao and Dang.

The central legal issues before the court were whether there was a disparity between the sentences imposed on the applicant and the sentences given to Cao and Dang, and whether the sentencing judge had adequately considered the applicant's plea of guilty and prospects of rehabilitation. The applicant contended that their role, while significant, did not warrant a harsher sentence than those of Cao and Dang, particularly given Dang's higher position in the enterprise and Cao's separate trafficking activities. Additionally, the applicant argued that their efforts to rehabilitate, including methadone treatment, full-time work, and volunteering, were insufficiently accounted for by the sentencing judge.

The court considered these arguments and found that the disparity in sentencing was not sufficient to warrant interference, as the differences in roles and the nature of the enterprises were duly considered by the sentencing judge. The court also held that the sentencing judge had appropriately accounted for the applicant's plea of guilty and prospects of rehabilitation, noting the remarks on the applicant's reoffending on bail. Consequently, the application for leave to appeal was refused.

No further orders were made beyond the refusal of the appeal.

Orders

Orders of the court

The application for leave to appeal be refused.

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 Davenport [2018] QCA 330
PARTIES:	R v DAVENPORT, Douglas James (applicant)
FILE NO/S:	CA No 24 of 2018 SC No 1402 of 2016 SC No 1525 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 15 January 2018 (Martin J)
DELIVERED ON:	30 November 2018
DELIVERED AT:	Brisbane
HEARING DATE:	22 August 2018
JUDGES:	Morrison and Philippides and McMurdo JJA
ORDER:	The application for leave to appeal be refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – where the applicant pleaded guilty to a number of serious drug offences – where the applicant was sentenced to an overall period of imprisonment of 11 years and nine months – where the longest term of imprisonment was nine years and nine months imposed for an offence of trafficking in methylamphetamine and heroin – where no parole eligibility date was set – where the applicant’s trafficking was part of an enterprise directed by Dang – where the applicant was subordinate to Dang, but still engaged in the trafficking at a “managerial level” – where Dang was sentenced to 10 years and six months’ imprisonment, attracting a serious violent offence declaration and a non-parole period of 80 per cent of the head sentence –where the applicant supplied drugs to Cao – where Cao was sentenced for trafficking to nine years’ imprisonment, with an early parole eligibility date taking into account time spent in immigration detention – where Cao’s trafficking was not part of the same enterprise as the applicant’s – whether there was disparity between the sentence imposed on the applicant for the trafficking offence and the sentences imposed on Cao and Dang CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – OTHER MATTERS – where the applicant engaged in drug trafficking to support his own addiction – where there was evidence at the time of sentence that the applicant had been collecting methadone prescriptions, working full time and volunteering – where the sentencing judge remarked that the applicant’s reoffending on bail suggested that his prospects of rehabilitation were not obvious – where the sentencing judge reduced the notional head sentence to take into account undeclarable presentence custody and other mitigating factors – whether the sentencing judge gave insufficient discount for the applicant’s plea of guilty and prospects of rehabilitation Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, cited Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited R v Carlisle[2017] QCA 258, considered R v KAQ; Ex parte Attorney-General (Qld) (2015) 253 A Crim R 201; [2015] QCA 98, cited
COUNSEL:	M Horvath with B K Buckley for the applicant C Cook for the respondent
SOLICITORS:	Dib & Associates for the applicant Director of Public Prosecutions (Queensland) for the respondent