R v Guthrie

[2002] QCA 509

SUPREME COURT OF QUEENSLAND

CITATION:

R v Guthrie [2002] QCA 509

PARTIES:

R
v
GUTHRIE, Graeme Leslie
(applicant)

FILE NO/S:

CA No 248 of 2002
SC No 418 of 2001
SC No 443 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 November 2002

DELIVERED AT:

Brisbane

HEARING DATE:

14 November 2002

JUDGES:

de Jersey CJ, Williams JA and Mullins J
Separate reasons for judgment of each member of the court, each concurring as to the order made

ORDER:

Application refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – PROPERTY OFFENCES – where applicant sentenced for series of drug and drug related offences including 9 years’ imprisonment for trafficking dangerous drugs with serious violent offence declaration – whether declaration under s 161 Penalties and Sentences Act 1992 (Qld) should have been made with respect to presentence custody – where s 161(4) did not apply as part of custody was in respect of interstate warrants

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS  – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED –  PARTICULAR OFFENCES – PROPERTY OFFENCES – whether serious violent offence declaration made sentence manifestly excessive – relatively little weight given to poor health of applicant did not make sentence manifestly excessive – principle of parity in sentencing was adhered to as applicant had greater criminality than co-offender – sentence not manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 161, s 161(1), s 161(4), s 161B(3)(b)

R v Bojovic [2000] 2 Qd R 183, considered
R v Fox [1998] QCA 121; CA No 50 of 1998, 12 June 1998, followed
R v Irlam; ex parte A-G (Qld) [2002] QCA 235; CA 157 of 2002, CA 173 of 2002; 28 June 2002, referred to
R v Massey [2002] QCA 312; CA 60 of 2002, 23 August 2002, referred to

COUNSEL:

A Vasta QC for the applicant
DL Meredith for the respondent

SOLICITORS:

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

1. de JERSEY CJ

   :  I have had the advantage of reading the reasons for judgment of Mullins J.  I agree that the application should be refused, for the reasons expressed by her Honour.

   
   
   

1. WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Mullins J, and I agree with them and with the order proposed.

1. The facts of the case do, however, raise concerns about the effectiveness in practice of s 161(4) of the Penalties and Sentences Act 1992.

1. It was obviously the intention of the legislature in enacting s 161 that a declaration that time spent in custody should be counted as part of the sentence was a preferable approach to that previously adopted by sentencing judges…