CA No 255 of 2009 SC No 49 of 2009 SC No 708 of 2009
DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
8 December 2009
DELIVERED AT:
Brisbane
HEARING DATE:
20 November 2009
JUDGES:
McMurdo P, Fraser JA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:
The application for leave to appeal against sentence is refused
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – the applicant pleaded guilty to one count of trafficking in the dangerous drugs cocaine, MDMA and MDEA, one count of producing a dangerous drug and one count of possessing dangerous drugs – the applicant was sentenced to 10 years imprisonment with a declaration that he was convicted of a serious violent offence on the trafficking count – whether the primary judge gave insufficient weight to the applicant's mitigating factors, including his guilty plea and efforts at rehabilitation – whether the sentence was manifestly excessive
B W Farr SC for the applicant D Meredith for the respondent
SOLICITORS:
Guest Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent
McMURDO P: The applicant, Simon Feakes, was originally charged with one count of trafficking in the dangerous drugs, cocaine,[1] 3,4-methylenedioxymethamphetamine (MDMA)[2] and 3,4-methylenedioxyethylamphetamine (MDEA)[3] between 4 May and 15 November 2006 (count 1); 11 counts of supplying drugs (counts 2-12); one count of producing a dangerous drug, cannabis sativa, in excess of 500 grams (count 13); and one count of possessing dangerous drugs (cocaine, cannabis, MDMA, MDEA) in excess of 500 grams (cannabis sativa) and 2.0 grams (cocaine and MDMA) (count 14). On 28 September 2009 in the Brisbane Supreme Court, he pleaded guilty to counts 1, 13 and 14. The prosecution accepted those pleas in full discharge of the indictment and did not pursue counts 2-12 which were particulars of count 1. Feakes was sentenced on count 1 to 10 years imprisonment with a declaration that he was convicted of a serious violent offence; on count 13 to two years concurrent imprisonment; and on count 14 to three years concurrent imprisonment. He 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.
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Details
AGLC
R v Feakes [2009] QCA 376
Case
[2009] QCA 376
Decision Date
CaseChat Overview and Summary
The applicant appealed against his sentence, arguing it was manifestly excessive. He had pleaded guilty to trafficking in dangerous drugs, producing a dangerous drug, and possessing dangerous drugs. The applicant was sentenced to 10 years imprisonment, with a declaration that he was convicted of a serious violent offence for the trafficking count. The applicant claimed the primary judge did not sufficiently consider mitigating factors, including his guilty plea and efforts at rehabilitation, when determining the sentence.
The court examined whether the primary judge appropriately assessed the mitigating factors and if the sentence was manifestly excessive or inadequate. The applicant argued that his guilty plea and rehabilitation efforts warranted a lesser sentence. The court considered the nature and circumstances of the offences, the role of the applicant, and the principles of sentencing.
The court found that the primary judge had given proper consideration to the mitigating factors presented by the applicant. The sentence was deemed appropriate in light of the serious nature of the offences and the need to deter similar conduct. The court held that the sentence was not manifestly excessive and refused the applicant's application for leave to appeal.
Orders
Orders of the court
The application for leave to appeal against sentence is refused