R v Gillbanks - [2015] QCA 148

[2015] QCA 148

COURT OF APPEAL

HOLMES JA
MORRISON JA
PHILIPPIDES JA

CA No 56 of 2015
SC No 88 of 2014

THE QUEEN

GILLBANKS, Paul Applicant

BRISBANE

FRIDAY, 14 AUGUST 2015

HOLMES JA: The applicant was convicted on his own plea of guilty of one count of possessing methylamphetamine with a total weight of 12.781 grams, at 71.8 per cent purity, and one count of possessing 29 grams of cannabis. At the time he was sentenced, on 4 March 2015, he was serving a sentence of three years imprisonment for burglary, his parole having been suspended on his arrest in April 2014 for the present charges. His full-time discharge date on that sentence is 25 August 2016. He was sentenced to two years imprisonment on the count of possessing methylamphetamine and 18 months imprisonment on the count of possessing cannabis, those sentences to be served concurrently with each other but cumulatively on the burglary sentence. His parole eligibility date was set at 25 February 2017.He seeks leave to appeal the sentences on the grounds that they are manifestly excessive by reason of the fixing of the parole eligibility date almost two years after he was sentenced and that the sentencing judge erred in regarding himself as obliged to set that date after the full-time discharge date on the burglary sentence.

The facts of the offending can be shortly stated. The applicant was on parole on the burglary sentence when the car in which he was travelling as a passenger was intercepted by police and he was found to be in possession of the drugs. The cannabis was in a clipseal bag contained in a shopping bag at his feet, as were 10 clipseal bags containing a substance used for cutting with methylamphetamine. A clipseal bag containing the methylamphetamine itself was found secreted between the passenger seat and the centre console. The applicant had $370 in cash on his person. The Crown submitted, and it was not contested, that the possession of the drugs was for a commercial purpose.

The applicant was 39 years old when he committed the offences. He had a criminal history dating back to 1995. It included offences of serious assault and wilful damage for which he was sentenced to 12 months imprisonment, having breached an intensive correctional order; an offence of carnal knowledge attracting nine months imprisonment; an offence of indecent treatment of children for which he received 15 months imprisonment, suspended for two years after having served 280 days; possession of property suspected of having been used in connection with the commission of a drug offence, for which he was sentenced to six months imprisonment, concurrently with a further 12 months to be served for unlawful possession of weapons; a number of offences of failing to comply with reporting requirements and breaches of fine option orders; a Commonwealth offence of using a carriage service to menace, harass or cause offence, for which he was sentenced to three months imprisonment; and three offences of…

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 Gillbanks

Details

AGLC: R v Gillbanks [2015] QCA 148
Case: [2015] QCA 148
Decision Date: 14 AUGUST 2015

CaseChat Overview and Summary

In the case of R v Gillbanks, the applicant, Paul Gillbanks, was convicted of possessing methylamphetamine and cannabis. Gillbanks had already been serving a three-year sentence for burglary, which he breached by committing the current offences. He was sentenced to two years for methylamphetamine possession and 18 months for cannabis possession, to be served concurrently with each other but cumulatively with his burglary sentence. Gillbanks applied for leave to appeal against his sentences, arguing that they were manifestly excessive because the parole eligibility date was set almost two years after his sentencing, and that the sentencing judge erred by setting the parole eligibility date after his full-time discharge date on the burglary sentence.

The legal issues in this case revolved around the interpretation of Section 160F of the Penalties and Sentences Act 1992 and the application of the totality principle in sentencing. The Court had to determine whether the sentencing judge's error in setting the parole eligibility date after the full-time discharge date on the burglary sentence amounted to a miscarriage of the sentencing discretion, and if so, whether a different sentence should be passed.

The Court found that the sentencing judge erred by setting the parole eligibility date after the full-time discharge date on the burglary sentence. The Court observed that the error reflected a failure to have regard to the totality principle in respect of this aspect of the sentence, leading to a miscarriage of the sentencing discretion. The Court also considered that Gillbanks was entitled to some credit for his cooperation in the administration of justice as reflected by his early guilty plea in relation to the current charges, but this consideration was dissipated by his abuse of the benefit he was given in respect of the burglary charge. The Court granted leave to appeal against sentence, allowed the appeal, and re-sentenced Gillbanks to two years imprisonment for the methylamphetamine possession and 18 months imprisonment for the cannabis possession, with a parole eligibility date of 25 February 2016. The Court also declared that Gillbanks is to be taken to have been serving his term of imprisonment for the current offences since 4 March 2015.

In summary, the Court of Appeal allowed Gillbanks' appeal against sentence, set aside the original sentences, and re-sentenced him with a corrected parole eligibility date. The Court held that the sentencing judge's error in setting the parole eligibility date after the full-time discharge date on the burglary sentence amounted to a miscarriage of the sentencing discretion, and that the totality principle should have been properly applied in determining the parole eligibility date.

Orders