R v Geissa - [2004] QCA 402

SUPREME COURT OF QUEENSLAND

CITATION:

R v Geissa [2004] QCA 402

PARTIES:

R
v
GEISSA, Andrea Giordano
(applicant)

FILE NO/S:

CA No 263 of 2004
SC No 432 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

27 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

27 October 2004

JUDGES:

McPherson and Davies JJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for leave to appeal against sentence granted
2. Appeal against sentence allowed only to the extent of setting aside the order that the sentence be suspended after the applicant has served 15 months and order that it be suspended after he serves nine months with an operational period of three years

CATCHWORDS:

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE - where the applicant pleaded guilty to six drug offences including supplying and possessing heroin and receiving money from the supply of heroin - where the applicant was sentenced to two and a half years imprisonment, suspended after 15 months for an operational period of three years - where the applicant seeks leave to appeal against that sentence - where it was accepted that the drugs in his possession were substantially for the applicant's own use but that he was a low level dealer in order to support his own habit - whether the learned sentencing judge made the correct allowance for the period of pre-sentence custody in determining when the sentence should be suspended - whether the application for leave to appeal should be granted and the appeal allowed

R v Phillips [1993] QCA 427; CA No 191 of 1993, 25 October 1993, cited

R v Ross [1995] QCA 134; CA No 24 of 1995, 7 April 1995, cited

R v Williams [1994] QCA 296; CA No 156 of 1994, 16 August 1994, cited

COUNSEL:

A W Moynihan for applicant
R G Martin for respondent

SOLICITORS:

Legal Aid Queensland for applicant
Director of Public Prosecutions (Queensland) for respondent

DAVIES JA: The applicant pleaded guilty on 26 July this year to six offences; two of supplying the dangerous drug heroin, three of possession of heroin and one of receipt of money obtained from supplying heroin. He was sentenced on the same day to two and a half years imprisonment, suspended after 15 months for an operational period of three years. He seeks leave to appeal against that sentence.

The two counts of supply, one of the counts of possession and the count of receipt of money obtained from supply were committed on 25 October 2002; the second count of possession was committed on 6 November 2002; and the third count of possession was committed on 5 August 2003.

The applicant, who is a heroin addict, was 24 at the time of the earliest of those…

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.

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Details

Case: [2004] QCA 402
Decision Date: 27 October 2004

CaseChat Overview and Summary

The case before the court involved an applicant who had pleaded guilty to various drug offences, including supplying and possessing heroin and receiving money from the supply of heroin. The applicant was sentenced to two and a half years imprisonment, which was suspended after a period of 15 months, with an operational period of three years. The applicant sought leave to appeal against the sentence, contending that the sentencing judge had not correctly accounted for the period of pre-sentence custody when determining when the sentence should be suspended.

The primary legal issue before the court was whether the sentencing judge had made the appropriate allowance for the time the applicant had already spent in pre-sentence custody when deciding the point at which the sentence should be suspended. This required an examination of the relevant principles and authorities governing the suspension of sentences and the consideration of the period of pre-sentence custody. The court also had to determine whether the application for leave to appeal should be granted and, if so, whether the appeal against the sentence should be allowed.

In reaching its decision, the court considered relevant case law, including R v Phillips, R v Ross, and R v Williams, which provided guidance on the factors to be taken into account in sentencing and the appropriate consideration of pre-sentence custody. The court found that the sentencing judge had not correctly accounted for the period of pre-sentence custody, which had resulted in an earlier suspension of the sentence than was warranted. Consequently, the court granted the application for leave to appeal and allowed the appeal against the sentence to the extent of setting aside the order that the sentence be suspended after the applicant had served 15 months. The sentence was to be suspended after the applicant served nine months, with an operational period of three years.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal against sentence allowed only to the extent of setting aside the order that the sentence be suspended after the applicant has served 15 months and order that it be suspended after he serves nine months with an operational period of three years

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Geissa [2004] QCA 402
PARTIES:	R v GEISSA, Andrea Giordano (applicant)
FILE NO/S:	CA No 263 of 2004 SC No 432 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	27 October 2004
DELIVERED AT:	Brisbane
HEARING DATE:	27 October 2004
JUDGES:	McPherson and Davies JJA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal against sentence granted 2. Appeal against sentence allowed only to the extent of setting aside the order that the sentence be suspended after the applicant has served 15 months and order that it be suspended after he serves nine months with an operational period of three years
CATCHWORDS:	CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE - where the applicant pleaded guilty to six drug offences including supplying and possessing heroin and receiving money from the supply of heroin - where the applicant was sentenced to two and a half years imprisonment, suspended after 15 months for an operational period of three years - where the applicant seeks leave to appeal against that sentence - where it was accepted that the drugs in his possession were substantially for the applicant's own use but that he was a low level dealer in order to support his own habit - whether the learned sentencing judge made the correct allowance for the period of pre-sentence custody in determining when the sentence should be suspended - whether the application for leave to appeal should be granted and the appeal allowed R v Phillips [1993] QCA 427; CA No 191 of 1993, 25 October 1993, cited R v Ross [1995] QCA 134; CA No 24 of 1995, 7 April 1995, cited R v Williams [1994] QCA 296; CA No 156 of 1994, 16 August 1994, cited
COUNSEL:	A W Moynihan for applicant R G Martin for respondent
SOLICITORS:	Legal Aid Queensland for applicant Director of Public Prosecutions (Queensland) for respondent