R v Guzan - [2005] QCA 158

SUPREME COURT OF QUEENSLAND

CITATION:

R v Guzan [2005] QCA 158

PARTIES:

R
v
GUZAN, Brian Gabriel
(applicant/appellant)

FILE NO/S:

CA No 41 of 2005
SC No 22 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

13 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

12 April 2005

JUDGES:

McPherson and Jerrard JJA and Helman J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for leave to appeal against sentence granted
2. Appeal allowed
3. Sentence varied to the extent of deleting his Honour’s recommendation concerning post-prison community-based release and substituting for it a recommendation that the applicant be eligible for post-prison community-based release after he has served six months imprisonment from the day he was sentenced

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – where applicant/appellant convicted of trafficking in cannabis sativa and other drug offences– where applicant/appellant sentenced to two years and nine months imprisonment for count one, one year imprisonment for each of counts two to five and three months imprisonment for count six – where all sentences to be served concurrently – where recommendation for post-prison community-based release after serving twelve months imprisonment – where significant criminal history - whether sentences imposed manifestly excessive

R v Haygarth [1995] QCA 403; CA No 220 of 1995, 28 July 2005, cited
R v McFadden [1994] QCA 288; CA No 132 of 1994, 12 August 1994, considered
R v Seabrook [2004] QCA 210; CA No 21 of 2004, 21 June 2004, considered
R v Whyte [2002] QCA 56, CA No 429 of 2002, 20 February 2003, cited

COUNSEL:

M Green for the applicant/appellant
M R Byrne for the respondent

SOLICITORS:

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

McPHERSON JA: I agree that this appeal be allowed to the extent proposed in the reasons of Helman J, which I have had the advantage of considering and in which in I concur.

JERRARD JA: I have read and respectfully agree with the reasons for judgment and orders proposed by Helman J.

HELMAN J: This is an application for leave to appeal against sentences imposed on the applicant on 7 February 2005 in the Supreme Court at Brisbane after he had pleaded guilty to five counts of offences against the Drugs Misuse Act 1986 (counts 1 to 5) and one count of wilful and unlawful destruction of property (count 6). The charges came before the court on an ex officio indictment. Counts 1 to 5 were respectively: unlawfully trafficking in a dangerous drug, unlawfully producing a dangerous drug, unlawfully possessing a dangerous drug, receiving property ($635) obtained from trafficking in a dangerous drug, and possessing things (two mobile telephones and a notebook) he used in connexion with…

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 Guzan

Details

AGLC: R v Guzan [2005] QCA 158
Case: [2005] QCA 158
Decision Date: 13 May 2005

CaseChat Overview and Summary

The applicant, Guzan, was convicted of trafficking in cannabis sativa and other drug offences. Guzan was sentenced to two years and nine months imprisonment for count one, one year imprisonment for each of counts two to five, and three months imprisonment for count six. All sentences were to be served concurrently, with a recommendation for post-prison community-based release after serving twelve months imprisonment. The applicant appealed against his sentence, arguing it was manifestly excessive, given his significant criminal history.

The court needed to determine whether the sentence imposed on Guzan was manifestly excessive, considering his criminal history. The applicant argued that the sentence was disproportionately harsh and did not take into account his potential for rehabilitation. The court had to weigh the severity of the offences against the applicant's criminal history and the possibility of rehabilitation.

The court found that the sentence imposed on Guzan was manifestly excessive, taking into account his criminal history and the possibility of rehabilitation. The court accepted that the applicant had a significant criminal history but considered that this alone was not sufficient to justify the sentence. The court also found that the recommendation for post-prison community-based release after serving twelve months imprisonment was too lenient, given the seriousness of the offences. The court substituted this recommendation with one that the applicant be eligible for post-prison community-based release after serving six months imprisonment from the day he was sentenced.

The court granted Guzan's application for leave to appeal against his sentence, allowed the appeal, and varied the sentence to the extent of deleting the original recommendation concerning post-prison community-based release and substituting a recommendation that Guzan be eligible for post-prison community-based release after he has served six months imprisonment from the day he was sentenced.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal allowed

3. Sentence varied to the extent of deleting his Honour’s recommendation concerning post-prison community-based release and substituting for it a recommendation that the applicant be eligible for post-prison community-based release after he has served six months imprisonment from the day he was sentenced

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Guzan [2005] QCA 158
PARTIES:	R v GUZAN, Brian Gabriel (applicant/appellant)
FILE NO/S:	CA No 41 of 2005 SC No 22 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	13 May 2005
DELIVERED AT:	Brisbane
HEARING DATE:	12 April 2005
JUDGES:	McPherson and Jerrard JJA and Helman J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal against sentence granted 2. Appeal allowed 3. Sentence varied to the extent of deleting his Honour’s recommendation concerning post-prison community-based release and substituting for it a recommendation that the applicant be eligible for post-prison community-based release after he has served six months imprisonment from the day he was sentenced
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – where applicant/appellant convicted of trafficking in cannabis sativa and other drug offences– where applicant/appellant sentenced to two years and nine months imprisonment for count one, one year imprisonment for each of counts two to five and three months imprisonment for count six – where all sentences to be served concurrently – where recommendation for post-prison community-based release after serving twelve months imprisonment – where significant criminal history - whether sentences imposed manifestly excessive R v Haygarth [1995] QCA 403; CA No 220 of 1995, 28 July 2005, cited R v McFadden [1994] QCA 288; CA No 132 of 1994, 12 August 1994, considered R v Seabrook [2004] QCA 210; CA No 21 of 2004, 21 June 2004, considered R v Whyte [2002] QCA 56, CA No 429 of 2002, 20 February 2003, cited
COUNSEL:	M Green for the applicant/appellant M R Byrne for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent