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 2012DIVISION:
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 madeORDER:
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, citedCOUNSEL:
The applicant appeared on his own behalf
S J Farnden for the respondentSOLICITORS:
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…
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- AGLC
- R v Gardner (Senior) [2012] QCA 290
- Case
- [2012] QCA 290
- Decision Date
CaseChat Overview and Summary
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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