R v Duggan - [2004] QCA 442

SUPREME COURT OF QUEENSLAND

CITATION:

R v Duggan [2004] QCA 442

PARTIES:

R
v
DUGGAN, Brian John

(applicant)

FILE NO/S:

CA No 308 of 2004
SC No 292 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING
COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

18 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

18 November 2004

JUDGES:

McPherson and Williams JJA and Philippides J

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

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT – SENTENCE – where applicant sentenced to two and a half years’ imprisonment suspended after 12 months with operational period of three years for aggravated possession of Schedule 1 drugs and possession of Schedule 2 drugs – where possession for personal use and sharing with associates – where applicant 50 years of age at sentencing with prior criminal history of trafficking - whether sentence manifestly excessive

Duncan v The Queen (1983) 47 ALR 746, cited
R v Bell [1982] Qd R 216, cited
R v Brockfield [1993] QCA 348; CA No 229 of 1993, 21 September 1993 ,cited
R v Hogon (1987) 30 A Crim R 399, cited
R v Law; ex parte Attorney-General [1996] 2 Qd R 63, cited
R v Miceli (1997) 94 A Crim R 327, cited

R v Molina (1984) 13 A Crim R 76, cited

COUNSEL:

A J Kimmins for the applicant

R G Martin for the respondent

SOLICITORS:

Jacobson Mahony Lawyers for the applicant

Director of Public Prosecutions (Queensland) for the respondent

PHILIPPIDES J: The applicant seeks leave to appeal against sentences imposed on 6th September 2004 in relation to drug offences. The applicant was convicted on his plea to two counts of aggravating possession of a schedule 1 drug, namely cocaine and methylamphetamine, for which he was sentenced to concurrent terms of two and a half years imprisonment, suspended after 12 months for an operational period of three years. The applicant was also convicted on his plea to one count of possession of schedule 2 drugs, MDMA, cannabis and ketamine and sentenced to 12 months imprisonment, suspended after four months for an operational period of 18 months.

The drugs in question were discovered as a result of police executing a search warrant at the applicant's house on 15 August 2002. The quantities of the drugs found were 5.157 grams of cocaine in 10.625 grams of powder with a purity of 41 per cent, 1.3 grams of cannabis, 0.047 grams of MDMA, 2.087 grams of methylamphetamine in 2.664 grams of powder with a purity of 80 per cent, and traces of ketamine.

The applicant contends that the sentences imposed were manifestly excessive and it is submitted that the appropriate sentence would, in the circumstances of this case, have been one of 18 months imprisonment, wholly suspended for an operational period in the vicinity of five years, or a…

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 Duggan

Details

AGLC: R v Duggan [2004] QCA 442
Case: [2004] QCA 442
Decision Date: 18 November 2004

CaseChat Overview and Summary

In the case of R v Duggan, the applicant, Duggan, was sentenced to two and a half years’ imprisonment, suspended after 12 months with an operational period of three years. The sentence was imposed for aggravated possession of Schedule 1 drugs and possession of Schedule 2 drugs. Duggan had been found in possession of the drugs for personal use and with the intention to share with associates. At the time of sentencing, Duggan was 50 years of age and had a prior criminal history of drug trafficking. The applicant sought leave to appeal the sentence, arguing that it was manifestly excessive.

The legal issue before the court was whether the sentence imposed on Duggan was manifestly excessive. The court was required to consider the seriousness of the offence, Duggan’s criminal history, the circumstances of the offence, and the principle of proportionality in sentencing. The court also needed to assess whether the sentence was unjust or disproportionate to the offence and the offender.

The court held that the sentence imposed on Duggan was not manifestly excessive. It was found that the sentence appropriately reflected the seriousness of the offence and took into account Duggan’s criminal history. The court noted that while Duggan had a history of drug trafficking, the current offence involved possession for personal use and sharing with associates. The court also considered the principle of proportionality and found that the sentence was commensurate with the nature and circumstances of the offence. The court rejected the argument that the sentence was manifestly excessive and dismissed the application for leave to appeal. The sentence imposed on Duggan was upheld.

Orders

Orders of the court

Application for leave to appeal against sentence refused

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 Duggan [2004] QCA 442
PARTIES:	R v DUGGAN, Brian John (applicant)
FILE NO/S:	CA No 308 of 2004 SC No 292 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	18 November 2004
DELIVERED AT:	Brisbane
HEARING DATE:	18 November 2004
JUDGES:	McPherson and Williams JJA and Philippides J Separate reasons for judgment of each member of the court, each concurring as to the orders made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT – SENTENCE – where applicant sentenced to two and a half years’ imprisonment suspended after 12 months with operational period of three years for aggravated possession of Schedule 1 drugs and possession of Schedule 2 drugs – where possession for personal use and sharing with associates – where applicant 50 years of age at sentencing with prior criminal history of trafficking - whether sentence manifestly excessive Duncan v The Queen (1983) 47 ALR 746, cited R v Bell [1982] Qd R 216, cited R v Brockfield [1993] QCA 348; CA No 229 of 1993, 21 September 1993 ,cited R v Hogon (1987) 30 A Crim R 399, cited R v Law; ex parte Attorney-General [1996] 2 Qd R 63, cited R v Miceli (1997) 94 A Crim R 327, cited R v Molina (1984) 13 A Crim R 76, cited
COUNSEL:	A J Kimmins for the applicant R G Martin for the respondent
SOLICITORS:	Jacobson Mahony Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent