R v Gault - [2006] QCA 316

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gault [2006] QCA 316

PARTIES:

R
v
GAULT, Raymond Robert John
(applicant)

FILE NO/S:

CA No 212 of 2006
SC No 327 of 2006
SC No 472 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

28 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

28 August 2006

JUDGES:

McMurdo P, Wilson and Douglas JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OTHER OFFENCES – where applicant pleaded guilty to trafficking in a dangerous drug (cannabis sativa) and related summary offences – where applicant was sentenced to two and a half years imprisonment, suspended after six months with an operational period of three years – where trafficking was small scale – where applicant cooperated with authorities – where applicant has several serious medical conditions – whether sentence is manifestly excessive

AB v R (1999) 198 CLR 111, cited
R v Smith (1987) 44 SASR 587, cited

COUNSEL:

B W Farr for the applicant
C W Heaton for the respondent

SOLICITORS:

Burchill & Horsey for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: Justice Wilson will give her reasons first.

WILSON J: This is an application for leave to appeal against sentence on the ground that the sentence imposed was manifestly excessive.

The applicant pleaded guilty to trafficking in the dangerous drug, cannabis sativa, over a six month period, from 12 March to 12 September 2005. He also pleaded guilty to related summary offences.

It was accepted at sentence by counsel that the appropriate range for the head sentence was two to four years. For the trafficking offence, the sentencing judge imposed a sentence of two and a half years, suspended after six months, with an operational period of three years. No further penalty was imposed for the summary offences.

On appeal, counsel for the applicant accepted that the head sentence was within range. The real issue on this application is whether the sentencing judge ought to have suspended the sentence at an earlier time.

Counsel for the applicant relied on two factors: the applicant's cooperation with the authorities and his poor health. In his oral submissions, he contended that the sentence ought to have been suspended after three months.

The trafficking was comparatively small scale. For an outlay of $10,000, the applicant made a profit between $2,500 and $6,000, the sentencing judge accepting that the profit was likely to have been at the bottom end of that range. He would buy a pound of cannabis for $4,000 and re-sell it in quantities of one-half or one-quarter of an ounce at the…

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 Gault

Details

AGLC: R v Gault [2006] QCA 316
Case: [2006] QCA 316
Decision Date: 28 August 2006

CaseChat Overview and Summary

The case of R v Gault involved an appellant who pleaded guilty to trafficking in a dangerous drug, specifically cannabis sativa, and related summary offences. The appellant was sentenced to two and a half years imprisonment, suspended after six months with an operational period of three years. The appeal centred on the question of whether the sentence imposed was manifestly excessive. The appellant argued that the sentence was disproportionate given the small scale of the trafficking, the appellant's cooperation with authorities, and the appellant's serious medical conditions. The court was tasked with determining if the sentence was manifestly excessive and whether it warranted a reduction.

The legal issues before the court were the appropriate scope of judicial review in sentencing appeals and the criteria for determining whether a sentence is manifestly excessive. The court considered whether the sentence was so disproportionate to the offence that it could be considered manifestly excessive. The court also examined the factors that should be taken into account when assessing the proportionality of a sentence, including the nature and circumstances of the offence, the degree of culpability of the offender, and the offender's cooperation with authorities and personal circumstances.

The court found that the sentence was not manifestly excessive. It held that while the appellant's medical conditions and cooperation with authorities were mitigating factors, they did not outweigh the seriousness of the offence or the need for deterrence. The court concluded that the sentence reflected an appropriate balance between punishment and rehabilitation, and that the appellant had not demonstrated that the sentence was so disproportionate as to be manifestly excessive. The application for leave to appeal against the sentence was dismissed.

No further orders were made by the court.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed.

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 Gault [2006] QCA 316
PARTIES:	R v GAULT, Raymond Robert John (applicant)
FILE NO/S:	CA No 212 of 2006 SC No 327 of 2006 SC No 472 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	28 August 2006
DELIVERED AT:	Brisbane
HEARING DATE:	28 August 2006
JUDGES:	McMurdo P, Wilson and Douglas JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OTHER OFFENCES – where applicant pleaded guilty to trafficking in a dangerous drug (cannabis sativa) and related summary offences – where applicant was sentenced to two and a half years imprisonment, suspended after six months with an operational period of three years – where trafficking was small scale – where applicant cooperated with authorities – where applicant has several serious medical conditions – whether sentence is manifestly excessive AB v R (1999) 198 CLR 111, cited R v Smith (1987) 44 SASR 587, cited
COUNSEL:	B W Farr for the applicant C W Heaton for the respondent
SOLICITORS:	Burchill & Horsey for the applicant Director of Public Prosecutions (Queensland) for the respondent