SUPREME COURT OF QUEENSLAND
CITATION:
R v Fitzgerald [2015] QCA 93
PARTIES:
R
v
FITZGERALD, Chase Dillan
(applicant)FILE NO/S:
CA No 2 of 2015
SC No 62 of 2014DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
Supreme Court at Townsville – Unreported, 27 November 2014DELIVERED EX TEMPORE ON:
25 May 2015DELIVERED AT:
Cairns
HEARING DATE:
25 May 2015
JUDGES:
Holmes and Morrison JJA and Henry J
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
The application for leave to appeal against sentence is refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – OTHER MATTERS – where the applicant was convicted and sentenced on his plea of guilty to one count of trafficking, three counts of supply and one count of possession – where the applicant was sentenced to seven years imprisonment on the trafficking count with a parole eligibility date fixed at three years – where the applicant received lesser sentences on the other charges, and all terms of imprisonment were to be served concurrently – where the applicant was charged in 2009 and was granted bail – where the applicant absconded for three and a half years – where the applicant had returned to Queensland and was preparing to surrender to the police when he was arrested – where the applicant had formed a relationship and had become the father of two children – where the applicant had not offended during the period of absconding, except for the offences resulting from his failure to appear – whether the sentence was manifestly excessive because insufficient weight was given to the prospect of rehabilitation, the aspect of rehabilitation and its impact on the parole eligibility date
R v Alt (2013) 236 A Crim R 486; [2013] QCA 343, cited
R v Davis[2012] QCA 324, cited
R v L; ex parte Attorney-General (Qld) [1996] 2 Qd R 63; [1995] QCA 444, cited
R v Willoughby[2009] QCA 105, citedCOUNSEL:
J Trevino for the applicant
M Cowan QC for the respondentSOLICITORS:
Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent
MORRISON JA: On 27 November 2014 Mr Fitzgerald was convicted and sentenced on his plea of guilty to: one count of trafficking in 3,4-Methylenedioxymethamphetamine (MDMA or ecstasy) over a period between 1 December 2008 and 25 September 2009; three counts of supplying Methylamphetamine; and one count of possession of MDMA in excess of two grams.
He was sentenced to seven years imprisonment on the trafficking count. A parole eligibility date was fixed at three years. After taking into account 376 days in pre-sentence custody that set the date at 16 November 2016.
On the supply counts he received lesser sentences, one of two years and two of 18 months. On the possession count he received three years. All those terms were to be served concurrently with the trafficking sentence.
Mr Fitzgerald…
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- AGLC
- R v Fitzgerald [2015] QCA 93
- Case
- [2015] QCA 93
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the sentencing judge had properly assessed the mitigating factors, including the prospect of rehabilitation, and whether these factors warranted a more lenient sentence and earlier parole eligibility. The applicant's counsel argued that factors such as his relationship, fatherhood, return to Queensland to surrender, and absence of offending during his absconding period should have resulted in a reduced custodial term. Conversely, the prosecutor maintained that the delay in sentencing was solely due to the applicant's absconding, thus not warranting any mitigating considerations.
The court examined the sentencing judge's comments and found that the judge had indeed considered the applicant's absconding, return, relationship, and lack of offending during the period of absconding. However, the judge also highlighted the need for general and personal deterrence, and denunciation, which outweighed the mitigating factors in this case. The court concluded that the sentencing judge did not err in his assessment and that the sentence was not manifestly excessive.
In light of this, the application for leave to appeal against the sentence was refused. The court found that the sentencing judge had appropriately balanced the mitigating factors against the need for deterrence and denunciation. The sentence of seven years imprisonment with a parole eligibility date fixed at three years was upheld as appropriate given the nature and extent of the applicant's criminal conduct.
Orders
Orders of the court
The application for leave to appeal against sentence is refused.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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