R v Inch - [2011] QCA 353

SUPREME COURT OF QUEENSLAND

CITATION:

R v Inch [2011] QCA 353

PARTIES:

R
v
INCH, Ned Ross
(applicant)

FILE NO/S:

CA No 270 of 2011
DC No 223 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

9 December 2011

DELIVERED AT:

Brisbane

HEARING DATE:

29 November 2011

JUDGES:

Margaret McMurdo P, Fraser JA and Margaret Wilson AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    The application for leave to appeal against sentence is granted.

2.    The appeal is allowed.

3.    The sentence is varied by:

(a)     Substituting for the sentence of 21 months imprisonment imposed in the District Court on count 1 a sentence of 15 months imprisonment.

(b)     Substituting for the parole release date of 28 February 2012 fixed in the District Court a parole release date of 16 January 2012 for each count.

4.    The sentence imposed in the District Court is otherwise confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his plea of guilty of one count of producing methylamphetamine, one count of possession of methylamphetamine, one count of possession of cannabis and one count of possessing things used in connection with producing a dangerous drug – where the applicant received a head sentence of 21 months imprisonment for the production of methylamphetamine with a parole release date after serving slightly less than one quarter of the sentence – where the quantity and quality of methylamphetamine produced was not established – where there was no commercial element alleged – where the applicant cooperated fully with police, made admissions, proceeded by way of full hand-up committal and entered an early guilty plea – where the applicant had a drug addiction and a relevant criminal history, including one drug offence committed while on bail for the present offences – where the applicant showed insight into his addiction – whether the sentence imposed was manifestly excessive in all the circumstances

R v Hall [2002] QCA 438, considered
R v Sabine [2007] QCA 220, considered
R v Turner[2007] QCA 70, considered
Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14, cited

COUNSEL:

F Richards for the applicant
B J Power for the respondent

SOLICITORS:

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

MARGARET McMURDO P: I agree with Fraser JA’s reasons for granting leave and allowing the appeal against sentence. I also agree with his Honour’s proposed orders.

FRASER JA: On 30 September 2011, the applicant was convicted on his pleas of guilty of one count of producing methylamphetamine (count 1), one count of possession of methylamphetamine (count 2), one count of possession of cannabis (count 3), and one count of possessing things used in connection with producing a dangerous drug (count…

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 Inch

Details

AGLC: R v Inch [2011] QCA 353
Case: [2011] QCA 353
Decision Date: 9 December 2011

CaseChat Overview and Summary

The appellant in this case was convicted on his plea of guilty of producing methylamphetamine, possessing methylamphetamine, possessing cannabis, and possessing items used in connection with producing a dangerous drug. He was sentenced to 21 months imprisonment for the production of methylamphetamine, with a parole release date after serving slightly less than one quarter of the sentence. The appellant appealed against the sentence, arguing that it was manifestly excessive. The appeal was heard in the Supreme Court of Victoria.

The court was required to determine whether the sentence imposed was manifestly excessive or inadequate. The appellant argued that the sentence was excessive because the quantity and quality of the methylamphetamine produced was not established, there was no commercial element alleged, and he had cooperated fully with police, made admissions, proceeded by way of full hand-up committal, and entered an early guilty plea. The court also had to consider the appellant's drug addiction and relevant criminal history, including one drug offence committed while on bail for the present offences.

The court found that the sentence imposed was manifestly excessive in all the circumstances. The court noted that the appellant had shown insight into his addiction and had cooperated fully with police. The court also noted that the quantity and quality of the methylamphetamine produced was not established, and there was no commercial element alleged. The court found that a sentence of 15 months imprisonment with a parole release date of 16 January 2012 was appropriate.

The court varied the sentence by substituting for the sentence of 21 months imprisonment imposed in the District Court on count 1 a sentence of 15 months imprisonment, and by substituting for the parole release date of 28 February 2012 fixed in the District Court a parole release date of 16 January 2012 for each count. The sentence imposed in the District Court was otherwise confirmed.

Orders

Orders of the court

1. The application for leave to appeal against sentence is granted.

2. The appeal is allowed.

3. The sentence is varied by:

(a) Substituting for the sentence of 21 months imprisonment imposed in the District Court on count 1 a sentence of 15 months imprisonment.

(b) Substituting for the parole release date of 28 February 2012 fixed in the District Court a parole release date of 16 January 2012 for each count.

4. The sentence imposed in the District Court is otherwise confirmed.

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 Inch [2011] QCA 353
PARTIES:	R v INCH, Ned Ross (applicant)
FILE NO/S:	CA No 270 of 2011 DC No 223 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	9 December 2011
DELIVERED AT:	Brisbane
HEARING DATE:	29 November 2011
JUDGES:	Margaret McMurdo P, Fraser JA and Margaret Wilson AJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for leave to appeal against sentence is granted. 2. The appeal is allowed. 3. The sentence is varied by: (a) Substituting for the sentence of 21 months imprisonment imposed in the District Court on count 1 a sentence of 15 months imprisonment. (b) Substituting for the parole release date of 28 February 2012 fixed in the District Court a parole release date of 16 January 2012 for each count. 4. The sentence imposed in the District Court is otherwise confirmed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his plea of guilty of one count of producing methylamphetamine, one count of possession of methylamphetamine, one count of possession of cannabis and one count of possessing things used in connection with producing a dangerous drug – where the applicant received a head sentence of 21 months imprisonment for the production of methylamphetamine with a parole release date after serving slightly less than one quarter of the sentence – where the quantity and quality of methylamphetamine produced was not established – where there was no commercial element alleged – where the applicant cooperated fully with police, made admissions, proceeded by way of full hand-up committal and entered an early guilty plea – where the applicant had a drug addiction and a relevant criminal history, including one drug offence committed while on bail for the present offences – where the applicant showed insight into his addiction – whether the sentence imposed was manifestly excessive in all the circumstances R v Hall [2002] QCA 438, considered R v Sabine [2007] QCA 220, considered R v Turner[2007] QCA 70, considered Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14, cited
COUNSEL:	F Richards for the applicant B J Power for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent