R v Davis - [2015] QCA 139

SUPREME COURT OF QUEENSLAND

CITATION:

R v Davis [2015] QCA 139

PARTIES:

R
v
DAVIS, Anthony Lewis Wipere
(applicant)

FILE NO/S:

CA No 301 of 2014
DC No 1731 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Unreported, 3 November 2014

DELIVERED ON:

31 July 2015

DELIVERED AT:

Brisbane

HEARING DATE:

27 May 2015

JUDGE:

Gotterson JA and Atkinson and Martin JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Grant leave to appeal sentence.

2. Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the defendant pleaded guilty to one count of unlawfully supplying a dangerous drug to a person in a correctional facility – where at the time the offending took place the applicant was serving a sentence of imprisonment – where that term of imprisonment was in relation to offences committed while on parole – where the applicant was sentenced to 16 months imprisonment with a parole eligibility date set at eight and a half months from the date of sentence – whether the sentence gave effect to totality issues – whether the sentence was manifestly excessive

Corrective Services Act 2006 (Qld), s 209, s 211
Drugs Misuse Act 1986 (Qld), s 6
Penalties and Sentences Act 1992 (Qld), s 9, s 156A

R v Baxter[2010] QCA 235, considered
R v Cole[1998] QCA 205, distinguished
R v Leighton[2014] QCA 169, considered
R v Ramsay[2010] QCA 276, followed
R v Reardon[2006] QCA 225, distinguished

COUNSEL:

S G Bain for the applicant
B J Power for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

GOTTERSON JA: I agree with the orders proposed by Martin J and with the reasons given by his Honour.
ATKINSON J: I have had the advantage of reading the reasons of Martin J. I agree with the orders proposed for the reasons given.
MARTIN J: The applicant pleaded guilty in the District Court at Brisbane on 3 November 2014 to the indictable offence of unlawfully supplying a dangerous drug to a person in a correctional facility (Section 6(1)(e) and 6(2)(d), Drugs Misuse Act 1986). He was sentenced to 16 months imprisonment with a parole eligibility date of 13 July 2015, that is, about eight and a half months after the sentencing date. The applicant seeks leave to appeal on the ground that the sentence was manifestly excessive.
The applicant has an extensive criminal history and was, at the time of the offence, serving a sentence at Woodford Correctional Centre. In February 2011, the applicant had been convicted of a number of offences and sentenced to an intensive drug rehabilitation order. In July 2012 that rehabilitation order was vacated and, in lieu, the applicant was sentenced to imprisonment for three…

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 Davis

Details

AGLC: R v Davis [2015] QCA 139
Case: [2015] QCA 139
Decision Date: 31 July 2015

CaseChat Overview and Summary

The case of R v Davis involved the appellant, who had pleaded guilty to unlawfully supplying a dangerous drug to a person within a correctional facility. The appellant was already serving a term of imprisonment for offences committed while on parole at the time of the offence. The District Court sentenced the appellant to 16 months imprisonment, with a non-parole period of eight and a half months. The appellant sought leave to appeal against the sentence, arguing that it was manifestly excessive. The Court of Appeal was required to determine whether the sentence appropriately reflected the principle of totality and whether it was excessive.

The legal issue before the Court of Appeal was whether the sentence imposed was manifestly excessive or inadequate, taking into account the principle of totality. The appellant argued that the sentence failed to give effect to the time already served and the cumulative effect of the sentences, while the Crown submitted that the sentence was appropriate given the seriousness of the offence and the appellant's criminal history. The Court considered whether the sentence was manifestly excessive, taking into account the totality principle which requires that the cumulative effect of sentences for multiple offences be considered.

The Court of Appeal held that the sentence was not manifestly excessive. It found that the sentence appropriately reflected the principle of totality, considering the cumulative effect of the sentences. The Court concluded that the sentence did not give rise to any substantial injustice, and therefore, the appeal against sentence should be dismissed. The Court granted leave to appeal but ultimately dismissed the appeal. The sentence imposed by the District Court was affirmed.

Orders

Orders of the court

1. Grant leave to appeal sentence.

2. Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Davis [2015] QCA 139
PARTIES:	R v DAVIS, Anthony Lewis Wipere (applicant)
FILE NO/S:	CA No 301 of 2014 DC No 1731 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Unreported, 3 November 2014
DELIVERED ON:	31 July 2015
DELIVERED AT:	Brisbane
HEARING DATE:	27 May 2015
JUDGE:	Gotterson JA and Atkinson and Martin JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant leave to appeal sentence. 2. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the defendant pleaded guilty to one count of unlawfully supplying a dangerous drug to a person in a correctional facility – where at the time the offending took place the applicant was serving a sentence of imprisonment – where that term of imprisonment was in relation to offences committed while on parole – where the applicant was sentenced to 16 months imprisonment with a parole eligibility date set at eight and a half months from the date of sentence – whether the sentence gave effect to totality issues – whether the sentence was manifestly excessive Corrective Services Act 2006 (Qld), s 209, s 211 Drugs Misuse Act 1986 (Qld), s 6 Penalties and Sentences Act 1992 (Qld), s 9, s 156A R v Baxter[2010] QCA 235, considered R v Cole[1998] QCA 205, distinguished R v Leighton[2014] QCA 169, considered R v Ramsay[2010] QCA 276, followed R v Reardon[2006] QCA 225, distinguished
COUNSEL:	S G Bain for the applicant B J Power for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent