R v Day & Gill - [2005] QCA 100

SUPREME COURT OF QUEENSLAND

CITATION:

R v Day & Gill [2005] QCA 100

PARTIES:

R
v
DAY, Clinton
(applicant)
GILL, Sharon Leigh-Anne

(applicant)

FILE NO/S:

CA No 35 of 2005
CA No 46 of 2005

SC No 655 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING
COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

7 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

7 April 2005

JUDGES:

Williams and Keane JJA and Philippides J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. In Appeal No 35 of 2005: application dismissed

2. In Appeal No 46 of 2005: application dismissed

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – where applicant Day sentenced to 3½ years imprisonment suspended after 18 months for producing a dangerous drug – where applicant Gill sentenced to 3 years imprisonment suspended after 12 months for producing a dangerous drug – where learned sentencing judge sentenced on basis of active involvement in production – whether commercial element to production – whether matters of mitigation taken into account – whether sentences imposed manifestly excessive

R v Bagnall [2005] QCA 020, distinguished
R v Clapham [2003] QCA 418, distinguished
R v Hall [2002] QCA 438, distinguished
R v Jeffs [2005] QCA 035, distinguished
R v Lau [2002] QCA 542; (2002) 136 A Crim R 495, distinguished
R v Welch [2002] QCA 36, distinguished

R v Woods [2004] QCA 204, distinguished

COUNSEL:

K McGinness for the applicants

M Byrne for the respondent

SOLICITORS:

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

WILLIAMS JA: I will ask Justice Philippides to deliver the first judgment.

PHILIPPIDES J: On 7 February 2005 Sharon Leigh-Anne Gill and Clinton Day were sentenced on their pleas in respect of a number of drug offences. The applicants were jointly charged with the following offences: count 1, unlawful production of the dangerous drug methylamphetamine; count 2, unlawful possession of the dangerous drug methylamphetamine in a quantity exceeding 2 grams; count 3, possession of a mobile phone used in connection with the commission of the crime of supplying a dangerous drug; count 4, possession of chemicals used in connection with the commission of the crime of producing a dangerous drug. And in addition Gill was charged with unlawful possession of a document containing instructions about the way to produce the dangerous drug, methylamphetamine.

In respect of count 1, the production charge, Gill was sentenced to three years' imprisonment suspended after 12 months for an operational period of five years. Day was sentenced to three and a-half years' imprisonment suspended after 18 months for an operational period of five years. In respect of count 2, the possession of methylamphetamine in a quantity exceeding 2 grams the applicants were each sentenced to 12 months' imprisonment suspended after four months for an operational period of three years. Concurrent sentences of…

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 Day & Gill

Details

AGLC: R v Day & Gill [2005] QCA 100
Case: [2005] QCA 100
Decision Date: 7 April 2005

CaseChat Overview and Summary

The applicants, Day and Gill, appealed against their sentences imposed by the County Court of Victoria, which found them guilty of producing a dangerous drug. Day was sentenced to 3½ years imprisonment, suspended after 18 months, while Gill received a 3-year sentence, suspended after 12 months. The applicants argued that the sentences were manifestly excessive due to the learned sentencing judge's consideration of their active involvement in the drug production and the alleged commercial element. They also claimed that the judge failed to take into account matters of mitigation.

The central legal issues in the appeal were whether the learned sentencing judge had correctly considered the applicants' level of involvement and the commercial aspect of their drug production activities, and whether the sentences imposed were manifestly excessive. The applicants contended that their sentences should have reflected their lesser roles and the absence of a commercial element, as well as the mitigating factors presented during the sentencing hearing.

The Court of Appeal found that the learned sentencing judge had appropriately considered the applicants' active involvement in the production of the drug and had correctly identified the commercial element of their activities. The Court also found that the learned sentencing judge had taken into account the matters of mitigation presented on behalf of the applicants. The Court concluded that the sentences imposed were not manifestly excessive, and therefore dismissed both appeals. The Court upheld the original sentences, which meant that the applicants would serve the specified periods of their sentences on suspension.

Orders

Orders of the court

1. In Appeal No 35 of 2005: application dismissed

2. In Appeal No 46 of 2005: application 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 Day & Gill [2005] QCA 100
PARTIES:	R v DAY, Clinton (applicant) GILL, Sharon Leigh-Anne (applicant)
FILE NO/S:	CA No 35 of 2005 CA No 46 of 2005 SC No 655 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	7 April 2005
DELIVERED AT:	Brisbane
HEARING DATE:	7 April 2005
JUDGES:	Williams and Keane JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. In Appeal No 35 of 2005: application dismissed 2. In Appeal No 46 of 2005: application dismissed
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – where applicant Day sentenced to 3½ years imprisonment suspended after 18 months for producing a dangerous drug – where applicant Gill sentenced to 3 years imprisonment suspended after 12 months for producing a dangerous drug – where learned sentencing judge sentenced on basis of active involvement in production – whether commercial element to production – whether matters of mitigation taken into account – whether sentences imposed manifestly excessive R v Bagnall [2005] QCA 020, distinguished R v Clapham [2003] QCA 418, distinguished R v Hall [2002] QCA 438, distinguished R v Jeffs [2005] QCA 035, distinguished R v Lau [2002] QCA 542; (2002) 136 A Crim R 495, distinguished R v Welch [2002] QCA 36, distinguished R v Woods [2004] QCA 204, distinguished
COUNSEL:	K McGinness for the applicants M Byrne for the respondent
SOLICITORS:	Legal Aid Queensland for the applicants Director of Public Prosecutions (Queensland) for the respondent