R v. Gibson - [2008] QCA 367

[2008] QCA 367

COURT OF APPEAL

McMURDO P
FRASER JA
CHESTERMAN J

Indictment No CA 198 of 2008
CA 199 of 2008

THE QUEEN

LOUIE WILLIAM GIBSON and WAYNE ARNOLD GIBSON

BRISBANE

DATE 21/11/2008

JUDGMENT

CHESTERMAN J: The applicants are brothers, each of whom, on 7 July 2008, pleaded to guilty to one charge of trafficking in the dangerous drug methylamphetamine, one charge of supplying the drug methylamphetamine and one charge of producing methylamphetamine.

On the first and third charges, trafficking and producing, both were sentenced to a term of 11 years' imprisonment which carried with it a declaration that the applicants had committed a serious violent offence.

On the second charge of supplying, each was sentenced to five years' imprisonment. All terms were to be served concurrently. The offences were committed between March 2004 and January 2005.

The applicant, Louie Gibson, was 52 years old when the offences occurred and 55 when sentenced. The applicant, Wayne Gibson was 49 at the time of the offences and 52 when sentenced. Neither had any relevant criminal history.

The only ground of appeal is that the sentences imposed on the applicants was substantially greater than those imposed upon one David Thomson who was said to be a co-offender whose offending involved the like degree of criminality.

The consequence is said to be that there was a departure from the "parity" principle and that, "The difference between the sentences imposed upon the applicants and Thomson, for the same offence, ought not to be such as to give rise to a justifiable sense of grievance on the part of the offenders with the heavier sentence or to give the impression that justice had not been done."

The passage comes from the judgment of Dawson J in Lowe v The Queen (1984) 154 CLR 606 at 623. Thomson was relevantly charged on the same indictment as the applicants with what I have called the first and third charges.

He was dealt with earlier, on 16 May 2008, and sentenced by Martin J to a term of nine years' imprisonment with a recommendation for parole after six years on each charge.

Wilson J, who sentenced the applicants, proceeded on the basis that they and others, including Thomson were engaged in a business of producing and trafficking methylamphetamine and that the applicants were superior to Thomson in the business hierarchy.

This finding and the consequent imposition of sentences more severe than those imposed on Thomson was said to involve an error of fact and discretion.

Thomson, the applicant's counsel submitted, was an equal co-offender and it was an impermissible departure from the principle of parity to impose a harsher sentence.

Justice Wilson gave detailed reasons. Her Honour said, "The applicants were professional gamblers and in that business, used Thomson as a bodyguard. He introduced the applicants to the amphetamine trade. He already had a number of suppliers and was himself involved in sales at street level.

A business was created. The applicants organised finance for production…

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. Gibson

Details

AGLC: R v Gibson [2008] QCA 367
Case: [2008] QCA 367
Decision Date: 21 November 2008

CaseChat Overview and Summary

Gibson and Gibson are brothers who pleaded guilty to trafficking, supplying and producing methylamphetamine. Both were sentenced to 11 years' imprisonment for the first and third charges, and five years for the second charge, with all terms to be served concurrently. The only ground of appeal was that the sentences imposed were substantially greater than those imposed upon a co-offender, David Thomson. The applicants argued that the sentences departed from the "parity" principle and should not have given rise to a justifiable sense of grievance. The appeal was dismissed.

The court examined the nature of the business relationship between the applicants and Thomson. Wilson J, who sentenced the applicants, found that they were superior to Thomson in the business hierarchy and imposed more severe sentences accordingly. The applicants argued that there was no hierarchy and that Thomson's offending was at the same level as theirs. However, the court found that the facts amply justified the conclusion that the business was hierarchical, with the applicants in a superior position to Thomson. They were the manufacturers, financiers and owners of the means of production, while Thomson relied on the applicants for his supply.

The court concluded that the applicants were not co-offenders in the same activities to the same extent as Thomson, and that the principle of parity did not apply. The appeals against sentence were dismissed, and the applicants were refused leave to appeal. The President noted that the maximum penalty for trafficking in a schedule one drug, methylamphetamine, is 25 years imprisonment, and that deterrence was an important sentencing principle. The applicants had made a reasoned decision to participate in this evil industry and must understand that the ultimate consequences for them would heavily outweigh any short-term profits.

Orders