R v Drury - [2005] QCA 187

SUPREME COURT OF QUEENSLAND

CITATION: R v Drury [2005] QCA 187

PARTIES:

R v DRURY, William John
(applicant/appellant)

FILE NO/S:

CA No 48 of 2005 SC No 10 of 2005
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING
COURT: Supreme Court at Toowoomba
DELIVERED EX
TEMPORE ON: 1 June 2005
DELIVERED AT: Brisbane
HEARING DATE: 1 June 2005
JUDGES: McMurdo P, Williams JA and Atkinson J
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made
ORDER:

1. Application for leave to appeal against sentence
granted
2.     Appeal allowed
3.     Instead of the sentence imposed at first instance
substitute
Count 1: 12 months imprisonment suspended after
serving three months imprisonment with an
operational period of two years
Counts 5 and 7: 18 months imprisonment suspended
after serving six months imprisonment with an
operational period of two years
Count 10: Two years imprisonment suspended after
six months with an operational period of three years
Counts 4, 5, 8, 9, 11 and 12: Six months
imprisonment
4.     Otherwise confirm the sentences imposed at first
instance

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OTHER OFFENCES – where applicant convicted after pleas of guilty to an ex officio indictment containing four counts of producing methylamphetamine, one count of possessing instructions for producing methylamphetamine, four counts of possessing things used in connection with producing methylamphetamine and three counts of possessing methylamphetamine – where received effective sentence of three years imprisonment suspended after 15 months with an operational period of four years – where all sentences concurrent – where 36 years old – where majority of offences committed on bail and some while awaiting sentence – where criminal history minor and not drug related – where all offences concerned methylamphetamine for personal use only – where no commercial element – where small quantities – where severe addiction at time of offences – where plea on some charges made before drug analysis certificates available – where 205 days spent in pre-sentence custody unable to be declared as time served – where now rehabilitated – whether sentence manifestly excessive
COUNSEL: K M McGinness for the applicant/appellant
D L Meredith for the respondent
SOLICITORS: Legal Aid Queensland for the applicant/appellant
Director of Public Prosecutions (Queensland) for the
respondent

THE PRESIDENT: The applicant, Mr Drury, pleaded guilty on 10 February 2005 at the Toowoomba Circuit Court to four counts of producing a dangerous drug (methylamphetamine), one count of possessing instructions for producing methylamphetamine, four counts of possessing things used in connection with producing methylamphetamine and three counts of possessing methylamphetamine. On count 10, the fourth count of producing methylamphetamine, he was sentenced to three years imprisonment suspended after serving 15 months imprisonment with an operational period of four years. He was sentenced to lesser concurrent terms of imprisonment in respect of the remaining offences. He applies for…

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 Drury

Details

AGLC: R v Drury [2005] QCA 187
Case: [2005] QCA 187
Decision Date: 1/06/2005

CaseChat Overview and Summary

The appeal against sentence in R v Drury was heard in the Supreme Court of Victoria. The applicant, convicted on various counts related to the production and possession of methylamphetamine, challenged the sentence imposed by the County Court. The applicant had pleaded guilty to multiple charges, including producing methylamphetamine, possessing instructions for producing methylamphetamine, and possessing items used in connection with the production of methylamphetamine. The court was tasked with determining whether the sentence was manifestly excessive.

The primary legal issue before the court was whether the sentence of three years imprisonment, suspended after 15 months with an operational period of four years, was excessive. The applicant argued that the sentence was manifestly excessive given his age, the small quantities of drugs involved, the lack of a commercial element, and his severe addiction at the time of the offences. Additionally, the applicant's criminal history was minor and not drug-related. The court had to weigh these mitigating factors against the severity of the offences and the need for general deterrence and denunciation.

The court considered the circumstances surrounding the applicant's offences and his background. The majority of the offences occurred while the applicant was on bail and some while awaiting sentencing, which indicated a lack of respect for the judicial process. However, the court also acknowledged the applicant's rehabilitation and the fact that he had been in pre-sentence custody for 205 days, although this time could not be counted as time served. The court ultimately found that the sentence, while harsh, was not manifestly excessive given the nature and circumstances of the offences. The application for leave to appeal against the sentence was dismissed.

The court made an order dismissing the application for leave to appeal against the sentence.

Orders

Orders of the court

Application for leave to appeal against sentence

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.

CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OTHER OFFENCES – where applicant convicted after pleas of guilty to an ex officio indictment containing four counts of producing methylamphetamine, one count of possessing instructions for producing methylamphetamine, four counts of possessing things used in connection with producing methylamphetamine and three counts of possessing methylamphetamine – where received effective sentence of three years imprisonment suspended after 15 months with an operational period of four years – where all sentences concurrent – where 36 years old – where majority of offences committed on bail and some while awaiting sentence – where criminal history minor and not drug related – where all offences concerned methylamphetamine for personal use only – where no commercial element – where small quantities – where severe addiction at time of offences – where plea on some charges made before drug analysis certificates available – where 205 days spent in pre-sentence custody unable to be declared as time served – where now rehabilitated – whether sentence manifestly excessive
COUNSEL:	K M McGinness for the applicant/appellant D L Meredith for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent