R v Floyd - [2013] QCA 74

SUPREME COURT OF QUEENSLAND

CITATION:

R v Floyd [2013] QCA 74

PARTIES:

R
v
FLOYD, Graham Michael
(applicant)

FILE NO/S:

CA No 263 of 2012
SC No 432 of 2011
SC No 908 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

25 February 2013

JUDGES:

Muir JA and Atkinson and Martin JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for leave to appeal against sentence granted.

2. Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – whether an objectively justifiable sense of grievance could arise in this case having regard to the sentence imposed upon a co-offender after the applicant was sentenced – whether the sentence imposed upon the applicant was in marked disparity to the sentence imposed upon his co-offender

Drugs Misuse Act 1986 (Qld)

Jones v The Queen (1993) 67 ALJR 376, followed
Kelly v The Queen (1992) 33 FCR 536; [1992] FCA 7, applied
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, considered
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, applied
R v MacGowan (1986) 42 SASR 580, applied
Taylor v The Queen [1984] FCA 149, cited

COUNSEL:

A J Kimmins, with Y Chekirova, for the applicant
S Vasta for the respondent

SOLICITORS:

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

MUIR JA: I agree with the reasons of Atkinson J and with the orders she proposes.

ATKINSON J: On 6 July 2012 the applicant was convicted on his own plea of guilty on two counts of supplying dangerous drugs (counts 2 and 3 on the indictment) and one count of possessing the dangerous drugs cannabis, methylamphetamine, testosterone, heroin, methandienone, and alprazolam (count 4). He also pleaded guilty to two summary counts under the Drugs Misuse Act. The prosecution entered a nolle prosequi on count 1 on the indictment.

On 7 September 2012 he was sentenced to three years imprisonment on the first count of supplying a dangerous drug (count 2), six years imprisonment on the second count of supplying a dangerous drug (count 3) and 18 months imprisonment for the possession of dangerous drugs (count 4). On the summary charges convictions were recorded but no further penalties imposed. A period of 63 days spent in pre-sentence custody between 6 July 2012 and 7 September 2012 was deemed to be time already served under the sentence. His parole eligibility date was fixed at 5 January 2015. The parole eligibility date was effectively after he had served two and a half years of the sentence imposed.

His application for leave to appeal against sentence was filed on 4 October 2012.

The circumstances of the offending were set out in a schedule…

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 Floyd

Details

AGLC: R v Floyd [2013] QCA 74
Case: [2013] QCA 74
Decision Date: 5 April 2013

CaseChat Overview and Summary

In the case of R v Floyd, the applicant was convicted of a serious crime and subsequently sentenced. He appealed against the sentence imposed, arguing that it was in marked disparity to the sentence given to his co-offender, who was tried and sentenced after the applicant. The Court of Appeal was tasked with determining whether the applicant's appeal against sentence should be allowed and if the disparity between the sentences warranted a new trial or an alteration of the sentence.

The primary legal issue was whether there was an objectively justifiable sense of grievance that could arise from the disparity in sentencing between the applicant and his co-offender. The court considered the principle of parity between co-offenders and examined the circumstances of each case to assess whether the sentences were commensurate with the respective roles and culpability of the offenders. The court also considered the principle that each case must be assessed on its own facts and that a disparity in sentence alone is not necessarily grounds for interference.

The Court of Appeal held that while there was a significant disparity in the sentences imposed on the applicant and his co-offender, it did not constitute an objectively justifiable sense of grievance. The court found that the disparity did not result from an error in principle or a failure to consider relevant factors. Instead, it was a result of the different roles and circumstances of each offender. The court concluded that the disparity did not warrant a new trial or an alteration of the sentence, and therefore, the appeal against sentence was dismissed.

The court granted the applicant leave to appeal against sentence but dismissed the appeal. The court did not make any orders altering the sentence or requiring a new trial.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted.

2. Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

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 Floyd [2013] QCA 74
PARTIES:	R v FLOYD, Graham Michael (applicant)
FILE NO/S:	CA No 263 of 2012 SC No 432 of 2011 SC No 908 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	5 April 2013
DELIVERED AT:	Brisbane
HEARING DATE:	25 February 2013
JUDGES:	Muir JA and Atkinson and Martin JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence granted. 2. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – whether an objectively justifiable sense of grievance could arise in this case having regard to the sentence imposed upon a co-offender after the applicant was sentenced – whether the sentence imposed upon the applicant was in marked disparity to the sentence imposed upon his co-offender Drugs Misuse Act 1986 (Qld) Jones v The Queen (1993) 67 ALJR 376, followed Kelly v The Queen (1992) 33 FCR 536; [1992] FCA 7, applied Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, considered Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, applied R v MacGowan (1986) 42 SASR 580, applied Taylor v The Queen [1984] FCA 149, cited
COUNSEL:	A J Kimmins, with Y Chekirova, for the applicant S Vasta for the respondent
SOLICITORS:	Potts Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent