R v Green - [1999] QCA 83

99.83

COURT OF APPEAL
McMURDO P
WHITE J

MUIR J

CA No 372 of 1998
THE QUEEN
v.

CAREY JOHN GREEN

Applicant

BRISBANE
..DATE 19/03/99
190399 D.1 T22/LE9 M/T COA53/99
THE PRESIDENT: The applicant pleaded guilty on 12
October 1998 in the Supreme Court in Brisbane to one
count of production of a dangerous drug,
methylamphetamine and five counts of supplying a
dangerous drug, methylamphetamine.

He was sentenced to five years imprisonment cumulative on a term of imprisonment imposed on 21 February 1995 and a recommendation for eligibility for parole was made after three years, on 12 October 2001.

He appeals on the basis that the sentence was manifestly excessive. His lawyer, Mr Callaghan, submitted, as a preliminary matter, that the learned sentencing Judge was led into error in finding that the applicant produced a total weight of 285 grams of material containing nearly 14 grams of pure methylamphetamine, and in particular in respect of the fifth count of supply, in that His Honour was led to believe by the Crown's submissions, that the supply related to 9.859 grams drug weight of pure methylamphetamine whereas the defence submissions indicated (at page 17 of the record and in the written submissions handed up to the sentencing judge) that less than one gram of methylamphetamine had been supplied by the applicant.

It is regrettable that this conflict as to facts was not
made clearer below. The respondent concedes that the
dispute existed below and also concedes that it is
190399 D.1 T22/LE9 M/T COA53/99
appropriate for this Court then to resentence the
applicant on the basis most favourable to the applicant.

The respondent submits that the appropriate sentencing range for a production and supply of this smaller quantity of methylamphetamine is four to five years on the facts of this case.

It is appropriate, as the applicant was on parole for trafficking in methylamphetamine at the time he committed these offences, for the sentences to be made cumulative. The four to five year sentence should be discounted somewhat because of the totality principle.

It should be noted that on 21 February 1995 the applicant was sentenced to three and a half years imprisonment with a recommendation for parole after serving 12 months of that sentence. His only other convictions were for driving offences which may be related to his amphetamine use. He was released on parole after serving 14 months and one day of the three and a half year sentence and, as his parole has not been suspended or cancelled, he had a further 28 months of that sentence to serve. His full-time release date on that sentence would be 12 February 2001.

The facts demonstrated that he was a back yard
amphetamine cook who made amphetamine each week for his
own use and began to supply Lindsay Jean, a user, with
amphetamine as required.
190399 D.1 T22/LE9 M/T COA53/99
Jean onsold the drug to a police undercover agent. The
applicant's operation was not sophisticated and
importantly he was not charged…

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 Green

Details

AGLC: R v Green [1999] QCA 83
Case: [1999] QCA 83
Decision Date: 19/03/1999

CaseChat Overview and Summary

In the Court of Appeal, the case of R v Green was heard by McMurdo P, White J, and Muir J. The applicant, Carey John Green, appealed against his sentence for producing and supplying methylamphetamine. Green had pleaded guilty to one count of production and five counts of supply, and was sentenced to five years imprisonment, to be served cumulatively with a previous sentence. The appeal centred on the argument that the sentence was manifestly excessive.

The key legal issues revolved around the correct factual basis for sentencing and the appropriate sentence to impose in light of the factual dispute. The defence argued that the sentencing judge was led into error by the Crown's submissions, which suggested a higher quantity of methylamphetamine was supplied than the defence had argued. The respondent conceded that the sentencing judge's error warranted a resentencing on the basis most favourable to the applicant.

The court found that it was appropriate to resentence Green on the basis of the smaller quantity of methylamphetamine supplied, as submitted by the defence. The court determined that a sentence of four to five years was appropriate, but discounted this somewhat due to the totality principle. Given the applicant's previous sentence and his status as a back yard amphetamine cook, the court imposed a sentence of three years imprisonment, cumulative with the existing sentence, with a recommendation for parole eligibility after eighteen months. The orders of the court were to grant leave to appeal, vacate the original sentence, and impose the new sentence with the specified parole eligibility date.

Orders