R v Germon

[2006] QCA 481

SUPREME COURT OF QUEENSLAND

CITATION:

R v Germon [2006] QCA 481

PARTIES:

R
v
GERMON, Scott James
(applicant)

FILE NO/S:

CA No 226 of 2006
SC No 611 of 2004
SC No 150 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EXTEMPORE ON:

20 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

20 November 2006

JUDGES:

de Jersey CJ, Jerrard and Holmes JJA
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 is refused

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – APPLICATION TO REDUCE SENTENCE – whether the learned trial judge erred when exercising their discretion pursuant to s 147 of the Penalties and Sentences Act 1992 (Qld) – where a four month term and a 12 month balance of a partially suspended term were activated cumulatively – whether the relevant matters were taken into account – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 147

COUNSEL:

P J Callaghan SC for the applicant
B G Campbell for the respondent

SOLICITORS:

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

THE CHIEF JUSTICE:  On the 4th of August 2006 the primary Judge activated a four month term suspended on 29 October 2004 for the production and possession of unlawful drugs, and the 12 month balance of a term partially suspended on the 18th of November 2004 in respect of four counts of aggravated unlawful possession of motor vehicles, in that case for an operational period of two years.

The 12 month term is to be served cumulatively upon the four month term.  The basis for that clearly is that the sets of offences were separate and separately dealt with - the later in the knowledge of the former - and if it is just to activate them then that meant prima facie both terms should be served.

There were other matters as well but I have just stated the essentials of the matter for the purpose of the determination of this morning's application.

While the applicant's only original complaint fixed on suggested delay in the bringing of the breach proceedings, it is now accepted that any delay was brought about by defence applications for adjournment.  It was accepted the Judge did not err in activating the terms or in requiring they be served cumulatively. 

The breach offences committed in August 2005 were three of driving while disqualified and, more significantly, one of possessing instructions to produce methylamphetamine.  The primary Judge appears, in what he said, to have taken account of all relevant matters.  The consideration now raised, said to have been given insufficient weight, is that the applicant remained drug free for 10 months and was able to secure employment. 

It was suggested in the written material that in view of those matters the terms should have run concurrently.  Those matters did not, however, oblige his Honour to proceed that way.  Indeed there was much in the history of the applicant's drug crime which strongly supported the imposition of not only the penalties but that they run cumulatively as his Honour ordered.  There is no need to go into those matters this morning because of the spare way in which the application has ultimately been advanced.

The Judge's discretion which fell to be exercised in the context of section 147 of the Penalties and Sentences Act did not, in my view, miscarry and I would refuse the application.

JERRARD JA:  I agree.
HOLMES JA:  I agree.
THE CHIEF JUSTICE:  The application is refused.

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