R v Evelyn - [2022] QCA 211

SUPREME COURT OF QUEENSLAND

CITATION:

R v Evelyn [2022] QCA 211

PARTIES:

R
v
EVELYN, Mark William
(applicant)

FILE NO/S:

CA No 92 of 2022
DC No 39 of 2022
DC No 61 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 21 April 2022 (Applegarth J)

DELIVERED ON:

28 October 2022

DELIVERED AT:

Brisbane

HEARING DATE:

13 October 2022

JUDGES:

Mullins P and Dalton and Flanagan JJA

ORDER:

Application dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his own plea of possessing methylamphetamine for a commercial purpose and contravening a magistrate’s order – where the applicant was sentenced to nine years for commercial possession with a concurrent period of three months for contravening the magistrate’s order – where the applicant committed the offences while on parole for previous drug and fraud-related offences – where the primary judge set the parole eligibility date by reference to the one-third mark of the sentence he imposed and not by reference to the total effective sentence the applicant would serve – whether the sentence imposed was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 156A, s 160F

R v Degn (2021) 7 QR 190; [2021] QCA 33, applied
R v Duong (2015) 255 A Crim R 57; [2015] QCA 170, cited
R v Lambert[2019] QCA 219, cited

COUNSEL:

C R Smith for the applicant
S J Dickson for the respondent

SOLICITORS:

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

MULLINS P: I agree with the reasons of Dalton JA for dismissing the application. The applicant’s submissions incorrectly characterised the learned sentencing judge’s selection of the parole eligibility date at one-third of the sentence imposed for possessing a dangerous drug in excess of 200 grams as “attaching” to that sentence. Totality considerations were the focus of the sentencing submissions before the sentencing judge. The sentencing judge addressed them by imposing the sentence to overlap with the existing sentences imposed in April 2020. The sentencing judge was cognisant of the period of imprisonment that would result with the partial cumulation of the sentence for the aggravated possession with the sentences imposed in April 2020, including when the sentencing judge observed in the course of the sentencing remarks:
“I have to follow principles of the Penalties and Sentences Act 1992 (Qld) that also require me to have regard to periods of imprisonment that you are currently serving, in what might loosely be described as a totality principle, that the total period of your imprisonment should reflect your overall criminality.”
In the circumstances that were under consideration by the sentencing judge in sentencing the applicant, the date selected as the parole eligibility date for the period of imprisonment calculated after the applicant would have served one-third of the partly cumulative sentence of nine…

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 Evelyn

Details

AGLC: R v Evelyn [2022] QCA 211
Case: [2022] QCA 211
Decision Date: 28 October 2022

CaseChat Overview and Summary

Evelyn appealed against his sentence, arguing it was manifestly excessive. He had pled guilty to possessing methylamphetamine for commercial purposes and contravening a magistrate’s order. The court sentenced him to nine years for the commercial possession offence, and three months for contravening the magistrate's order, to run concurrently. The applicant had a history of drug and fraud-related offences and committed the current offences while on parole.

The legal issue before the court was whether the sentence imposed was manifestly excessive. The applicant argued that the sentence should be set by reference to the total effective sentence he would serve, rather than by reference to the one-third mark of the sentence imposed by the primary judge. The court needed to consider whether the sentence was manifestly excessive and, if so, whether the appeal should be allowed.

The court noted that the applicant's criminal history was extensive and that the current offences were committed while he was on parole. The court considered that the sentence imposed was within the range of sentences that could be imposed for the offences and that the applicant's criminal history was a relevant consideration. The court held that the sentence was not manifestly excessive and dismissed the appeal. The court found that the parole eligibility date was properly set by reference to the one-third mark of the sentence imposed and not by reference to the total effective sentence the applicant would serve.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Evelyn [2022] QCA 211
PARTIES:	R v EVELYN, Mark William (applicant)
FILE NO/S:	CA No 92 of 2022 DC No 39 of 2022 DC No 61 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 21 April 2022 (Applegarth J)
DELIVERED ON:	28 October 2022
DELIVERED AT:	Brisbane
HEARING DATE:	13 October 2022
JUDGES:	Mullins P and Dalton and Flanagan JJA
ORDER:	Application dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his own plea of possessing methylamphetamine for a commercial purpose and contravening a magistrate’s order – where the applicant was sentenced to nine years for commercial possession with a concurrent period of three months for contravening the magistrate’s order – where the applicant committed the offences while on parole for previous drug and fraud-related offences – where the primary judge set the parole eligibility date by reference to the one-third mark of the sentence he imposed and not by reference to the total effective sentence the applicant would serve – whether the sentence imposed was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 156A, s 160F R v Degn (2021) 7 QR 190; [2021] QCA 33, applied R v Duong (2015) 255 A Crim R 57; [2015] QCA 170, cited R v Lambert[2019] QCA 219, cited
COUNSEL:	C R Smith for the applicant S J Dickson for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent