R v Gardner (Senior) - [2012] QCA 290

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gardner (Senior) [2012] QCA 290

PARTIES:

R
v
GARDNER (Senior), Michael Bennett
(applicant)

FILE NO/S:

CA No 172 of 2012
SC No 126 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 October 2012

DELIVERED AT:

Brisbane

HEARING DATE:

22 October 2012

JUDGES:

Holmes and White JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant sentenced to 13 years imprisonment for unlawful trafficking in cannabis sativa – where applicant contends that sentence was inadequate and ought to have been 20 years imprisonment – where respondent seeks to hold the sentence imposed below – whether applicant demonstrated relevant basis for challenging the appropriateness of his sentence

Criminal Code 1899 (Qld), s 668D, s 668E(3)
Drugs Misuse Act 1986 (Qld), s 5(b)
Penalties and Sentences Act 1992 (Qld), s 9, s 13, s 19(1)(a)

Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, considered
R v Grkovic, unreported, Court of Criminal Appeal, Qld, CA No 323 of 1988, 2 March 1989, cited
R v Kerma [2006] QCA 127, cited
R v Lowe[2004] QCA 398, cited
R v Salter[2010] QCA 284, cited
R v Tindel[1997] QCA 293, cited
R v Wittwer[1995] QCA 452, cited
Veen v The Queen [No 2] (1988) 164 CLR 464; [1988] HCA 14, cited

COUNSEL:

The applicant appeared on his own behalf
S J Farnden for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: I agree with the reasons of White JA and the order she proposes.

WHITE JA: The applicant seeks leave to appeal against the sentence of 13 years imprisonment imposed on him in the Trial Division on 13 June 2012 for unlawful trafficking in cannabis sativa on the ground that it is, in all the circumstances, manifestly inadequate. He pleaded guilty on 22 March 2012 on the third day of his trial.

The applicant has filed an outline of submissions in which he contends that the sentence which ought to have been imposed was one of 20 years – the maximum for the offence in respect of which he had pleaded guilty.[1]
[1]Drugs Misuse Act 1986, s 5(b).

At his sentence hearing the applicant was represented by counsel and solicitor. The primary judge did, however, give the applicant an opportunity to address the court after his counsel had made submissions on sentence. Her Honour had foreshadowed her intention to do so after the allocutus was administered on 22 March.

The sentence proceeded on an agreed statement of facts. The applicant intervened after the primary judge commenced her sentencing remarks to identify…

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 Gardner (Senior)

Details

AGLC: R v Gardner (Senior) [2012] QCA 290
Case: [2012] QCA 290
Decision Date: 26 October 2012

CaseChat Overview and Summary

The matter of R v Gardner (Senior) came before the court on an appeal against sentence, where the applicant, convicted of unlawful trafficking in cannabis sativa, sought to challenge the appropriateness of the 13-year imprisonment sentence imposed on him. The applicant argued that the sentence was inadequate and should have been 20 years imprisonment, while the respondent sought to uphold the sentence as it was. The central issue before the court was whether the applicant had provided sufficient grounds to interfere with the sentence on the basis that it was manifestly inadequate or excessive.

In evaluating the applicant's grounds for appeal, the court examined the principles governing the review of sentences. The court noted that for an appellate court to interfere with a sentence, there must be a demonstrated basis for concluding that the sentence imposed was manifestly inadequate or excessive. The applicant's contention that the sentence ought to have been longer was not enough; instead, the applicant needed to provide a compelling argument that the sentence was palpably insufficient to achieve the purposes of punishment, deterrence, and denunciation. The court found that the applicant had not provided such a basis and that the sentence was within the range of appropriate penalties for the offence.

The court further considered the principles of proportionality and the specific circumstances of the case, including the nature and extent of the applicant's involvement in the trafficking activity, the amount of drugs involved, and his criminal history. After a thorough review, the court concluded that the sentence was not manifestly inadequate and did not warrant interference. The applicant had not demonstrated that the sentence imposed was palpably insufficient to meet the purposes of sentencing.

The application for an appeal against sentence was refused. The sentence of 13 years imprisonment was upheld as appropriate and within the range of penalties that could be imposed for the offence of unlawful trafficking in cannabis sativa.

Orders

Orders of the court

Application 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 Gardner (Senior) [2012] QCA 290
PARTIES:	R v GARDNER (Senior), Michael Bennett (applicant)
FILE NO/S:	CA No 172 of 2012 SC No 126 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	26 October 2012
DELIVERED AT:	Brisbane
HEARING DATE:	22 October 2012
JUDGES:	Holmes and White JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant sentenced to 13 years imprisonment for unlawful trafficking in cannabis sativa – where applicant contends that sentence was inadequate and ought to have been 20 years imprisonment – where respondent seeks to hold the sentence imposed below – whether applicant demonstrated relevant basis for challenging the appropriateness of his sentence Criminal Code 1899 (Qld), s 668D, s 668E(3) Drugs Misuse Act 1986 (Qld), s 5(b) Penalties and Sentences Act 1992 (Qld), s 9, s 13, s 19(1)(a) Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, considered R v Grkovic, unreported, Court of Criminal Appeal, Qld, CA No 323 of 1988, 2 March 1989, cited R v Kerma [2006] QCA 127, cited R v Lowe[2004] QCA 398, cited R v Salter[2010] QCA 284, cited R v Tindel[1997] QCA 293, cited R v Wittwer[1995] QCA 452, cited Veen v The Queen [No 2] (1988) 164 CLR 464; [1988] HCA 14, cited
COUNSEL:	The applicant appeared on his own behalf S J Farnden for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent