R v Fisher - [2021] QCA 28

SUPREME COURT OF QUEENSLAND

CITATION:

R v Fisher [2021] QCA 28

PARTIES:

R
v
FISHER, John Gavin
(applicant)

FILE NO/S:

CA No 156 of 2020
SC No 536 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 16 July 2020 (Lyons SJA)

DELIVERED EX TEMPORE ON:

24 February 2021

DELIVERED AT:

Brisbane

HEARING DATE:

24 February 2021

JUDGES:

Holmes CJ and Morrison and Mullins JJA

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to five years imprisonment, suspended after 18 months, on one count of trafficking methylamphetamine, to be served concurrently with a six month term of imprisonment imposed in respect of one count of supplying cannabis – where the sentencing judge found that the applicant acted as a “go-fer” for his superiors in a drug trafficking business – where the applicant contends that the requirement to serve 18 months of actual imprisonment rendered the sentence manifestly excessive – where the applicant contends that he should have been sentenced on the basis that his culpability was equivalent to that of a street-level dealer – whether the sentencing judge had appropriate regard to the applicant’s attempts at rehabilitation and the effects of imprisonment given his disabilities – whether the sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – where the applicant contends that the sentence imposed was disproportionate to that imposed on another operative in the same drug trafficking business for which the offender worked – where that defendant was sentenced to five years imprisonment from the date of sentence with parole eligibility set after eight months – where that defendant had already spent 12 months in custody and was only 25 years old at the time of offending – whether the sentence was out of parity with that imposed on that defendant

R v Baker[2011] QCA 104, distinguished
R v Casagrande[2009] QCA 1, distinguished
R v Engellenner[2012] QCA 6, distinguished
R v Field[2017] QCA 188, distinguished
R v Mikula[2015] QCA 102, distinguished
R v Skeli[2017] QCA 191, distinguished

COUNSEL:

S McGhie (sol) for the applicant
N Needham for the respondent

SOLICITORS:

Richardson McGhie for the applicant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES CJ: The applicant seeks leave to appeal against a sentence of five years imprisonment, suspended after 18 months, on a count of trafficking in methylamphetamine over a seven month period. He was sentenced to a concurrent term of six months imprisonment in respect of one count of supplying cannabis.
The applicant worked for a man named Cowan who headed a syndicate trafficking methylamphetamine in Mackay and Southeast Queensland. Cowan had a number of…

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 Fisher

Details

AGLC: R v Fisher [2021] QCA 28
Case: [2021] QCA 28
Decision Date: 24 February 2021

CaseChat Overview and Summary

The case of R v Fisher involved the applicant appealing against the sentence imposed on him by the sentencing judge. The applicant was found guilty of trafficking methylamphetamine and supplying cannabis. The sentence imposed was five years imprisonment, suspended after 18 months, to be served concurrently with a six-month term for the cannabis charge. The applicant argued that the sentence was manifestly excessive and inadequate, contending that he should have been treated as a street-level dealer rather than a "go-fer" for his superiors in the drug trafficking business. Additionally, the applicant argued that the sentencing judge failed to appropriately consider his attempts at rehabilitation and the effects of imprisonment given his disabilities. Furthermore, the applicant claimed that the sentence was disproportionate compared to that of another operative in the same drug trafficking business, who received a sentence of five years imprisonment with parole eligibility after eight months.

The legal issues before the court were whether the sentencing judge had appropriate regard to the applicant's attempts at rehabilitation and the effects of imprisonment given his disabilities, and whether the sentence was manifestly excessive. Additionally, the court had to consider whether the sentence was out of parity with that imposed on the other defendant. The applicant argued that the sentence was disproportionate given the other defendant's sentence and his own role in the drug trafficking business. The court had to weigh these arguments against the sentencing judge's findings and the principles of sentencing.

The court found that the sentencing judge had appropriately considered the applicant's attempts at rehabilitation and the effects of imprisonment. The court also found that the sentence was not manifestly excessive or inadequate, and that the applicant's role in the drug trafficking business was appropriately considered. The court further found that the sentence was not out of parity with that imposed on the other defendant, as the other defendant had already spent 12 months in custody and was only 25 years old at the time of offending. The court held that the applicant had not demonstrated that the sentence was manifestly excessive or inadequate, and therefore the application for leave to appeal against the sentence was refused.

The final orders of the court were that the application for leave to appeal against the sentence was refused. The applicant was not granted permission to appeal against the sentence imposed by the sentencing judge.

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 Fisher [2021] QCA 28
PARTIES:	R v FISHER, John Gavin (applicant)
FILE NO/S:	CA No 156 of 2020 SC No 536 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 16 July 2020 (Lyons SJA)
DELIVERED EX TEMPORE ON:	24 February 2021
DELIVERED AT:	Brisbane
HEARING DATE:	24 February 2021
JUDGES:	Holmes CJ and Morrison and Mullins JJA
ORDER:	Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to five years imprisonment, suspended after 18 months, on one count of trafficking methylamphetamine, to be served concurrently with a six month term of imprisonment imposed in respect of one count of supplying cannabis – where the sentencing judge found that the applicant acted as a “go-fer” for his superiors in a drug trafficking business – where the applicant contends that the requirement to serve 18 months of actual imprisonment rendered the sentence manifestly excessive – where the applicant contends that he should have been sentenced on the basis that his culpability was equivalent to that of a street-level dealer – whether the sentencing judge had appropriate regard to the applicant’s attempts at rehabilitation and the effects of imprisonment given his disabilities – whether the sentence was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – where the applicant contends that the sentence imposed was disproportionate to that imposed on another operative in the same drug trafficking business for which the offender worked – where that defendant was sentenced to five years imprisonment from the date of sentence with parole eligibility set after eight months – where that defendant had already spent 12 months in custody and was only 25 years old at the time of offending – whether the sentence was out of parity with that imposed on that defendant R v Baker[2011] QCA 104, distinguished R v Casagrande[2009] QCA 1, distinguished R v Engellenner[2012] QCA 6, distinguished R v Field[2017] QCA 188, distinguished R v Mikula[2015] QCA 102, distinguished R v Skeli[2017] QCA 191, distinguished
COUNSEL:	S McGhie (sol) for the applicant N Needham for the respondent
SOLICITORS:	Richardson McGhie for the applicant Director of Public Prosecutions (Queensland) for the respondent