R v Fahey - [2019] QCA 142

SUPREME COURT OF QUEENSLAND

CITATION:

R v Fahey [2019] QCA 142

PARTIES:

R
v
FAHEY, Justin David
(applicant)

FILE NO/S:

CA No 116 of 2019
SC No 114 of 2019
SC No 624 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 1 May 2019 (Bowskill J)

DELIVERED ON:

26 July 2019

DELIVERED AT:

Brisbane

HEARING DATE:

19 July 2019

JUDGES:

Fraser JA and Applegarth and Bradley JJ

ORDER:

The application is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to four years imprisonment, suspended after six months, for possession of approximately 22 grams of MDMA and approximately 12 grams of cocaine – where the applicant was also sentenced to lesser terms of imprisonment, to be served concurrently, for supply of MDMA, for possessing MDA and MDMA, and for various summary offences – whether the sentence was manifestly excessive

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
R v Dwyer[2008] QCA 117, applied
R v Hesketh; Ex parte Attorney-General (Qld) [2004] QCA 116, distinguished
R v Michalas[2007] QCA 38, cited
R v Nguyen[2015] QCA 205, cited
R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited
R v Summerlin[2009] QCA 297, distinguished

COUNSEL:

B J Power for the applicant
D I Balic for the respondent

SOLICITORS:

Guest Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: The applicant pleaded guilty to various drug offences committed between June and October 2017. In the most serious offences the applicant supplied a dangerous drug by sending from Brisbane to Darwin a parcel which contained nearly 15 grams of pure MDMA in an overall quantity of nearly 27 grams of substance (count 4), he possessed dangerous drugs in excess of 2 grams in three bags containing a total pure weight of 22.77 grams of MDMA (count 5) and four clip-seal bags containing a total pure weight of 12.868 grams of cocaine (count 6), the drug in each case being possessed for a commercial purpose. In addition, the applicant supplied two tablets of MDMA (count 3), he possessed a tablet containing MDA and a tablet containing MDMA (count 8), and he committed various summary offences.
On 1 May 2019 the applicant was convicted and sentenced to four years imprisonment, suspended after serving six months in actual custody, on counts 5 and 6, three years imprisonment with a parole release date after six months on count 4, lesser concurrent terms on counts 3 and 8 and upon some summary charges, and he was not further punished upon other summary charges.
The applicant seeks leave to appeal against his sentence on the ground that it was manifestly excessive in all circumstances.
The applicant was…

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 Fahey

Details

AGLC: R v Fahey [2019] QCA 142
Case: [2019] QCA 142
Decision Date: 26 July 2019

CaseChat Overview and Summary

The case of R v Fahey involved an appeal by the applicant against his sentence, which was deemed to be manifestly excessive. The applicant had been convicted of possession of approximately 22 grams of MDMA and approximately 12 grams of cocaine, for which he was sentenced to four years imprisonment, suspended after six months. He was also sentenced to lesser terms of imprisonment, to be served concurrently, for supply of MDMA, possession of MDA and MDMA, and various summary offences. The applicant argued that the sentence was manifestly excessive and sought a reduction.

The legal issue before the court was whether the sentence imposed on the applicant was manifestly excessive. The court had to consider the nature and circumstances of the offences, the culpability of the applicant, and whether the sentence was disproportionate to the gravity of the offences. The court also had to consider the principles of proportionality and whether the sentence was consistent with those imposed for similar offences.

The court found that the sentence imposed on the applicant was not manifestly excessive. The court considered the nature and quantity of the drugs involved, the applicant's role in the supply chain, and his previous criminal history. The court held that the sentence reflected the seriousness of the offences and was proportionate to the gravity of the offending. The court also noted that the sentence had a significant deterrent effect and was necessary to protect the community.

The application for an appeal against sentence was refused.

Orders

Orders of the court

The application is 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 Fahey [2019] QCA 142
PARTIES:	R v FAHEY, Justin David (applicant)
FILE NO/S:	CA No 116 of 2019 SC No 114 of 2019 SC No 624 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 1 May 2019 (Bowskill J)
DELIVERED ON:	26 July 2019
DELIVERED AT:	Brisbane
HEARING DATE:	19 July 2019
JUDGES:	Fraser JA and Applegarth and Bradley JJ
ORDER:	The application is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to four years imprisonment, suspended after six months, for possession of approximately 22 grams of MDMA and approximately 12 grams of cocaine – where the applicant was also sentenced to lesser terms of imprisonment, to be served concurrently, for supply of MDMA, for possessing MDA and MDMA, and for various summary offences – whether the sentence was manifestly excessive Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited R v Dwyer[2008] QCA 117, applied R v Hesketh; Ex parte Attorney-General (Qld) [2004] QCA 116, distinguished R v Michalas[2007] QCA 38, cited R v Nguyen[2015] QCA 205, cited R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited R v Summerlin[2009] QCA 297, distinguished
COUNSEL:	B J Power for the applicant D I Balic for the respondent
SOLICITORS:	Guest Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent