R v Jamieson - [2016] QCA 11

SUPREME COURT OF QUEENSLAND

CITATION:

R v Jamieson [2016] QCA 11

PARTIES:

R
v
JAMIESON, Ryan Michael
(applicant)

FILE NO/S:

CA No 287 of 2014
DC No 52 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport – Date of Sentence: 26 September 2014

DELIVERED ON:

5 February 2016

DELIVERED AT:

Brisbane

HEARING DATE:

21 August 2015

JUDGES:

Gotterson and Morrison and Philippides JJA
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 be granted.

2.   The appeal is allowed.

3.   Set aside the orders made on 26 September 2014 in so far as they:

a.   declared that the offender was held in pre-sentence custody for six days between 19 September 2014 and 26 September 2014; and

b.   set the parole release date at 26 June 2015.

4.   In lieu thereof:

a. pursuant to Section 159A of the Penalties and Sentences Act 1992 (Qld), it is stated that the offender was held in pre-sentence custody for six days between 20 September 2014 and 25 September 2014 inclusive; and

b.   the date the offender be released on parole be fixed at 18 March 2015.

5.   Otherwise confirm the orders made on 26 September 2014.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to a number of charges under the Drugs Misuse Act 1986 (Qld), namely unlawfully supplying the dangerous drugs cannabis and methylamphetamine, unlawful possession of the dangerous drugs cannabis and methylamphetamine, and unlawful possession of things for use in the commission of a crime, namely the possession of a dangerous drug – where 18 months imprisonment was imposed on each count, all to be served concurrently – where six days pre-sentence custody was declared as time served under s 159A of the Penalties and Sentences Act 1992 (Qld) – where the parole release date was set at nine months as half of the head sentence – where the parole release date did not take into account the six days served in pre-sentence custody – whether the sentence was manifestly excessive, only in respect to the setting of the parole release date

Criminal Code (Qld), s 564(2), s 573
Criminal Practice Rules 1999 (Qld)
Drugs Misuse Act 1986 (Qld), s 6, s 6(1), s 6(2), s 129(1), pt 2
Penalties and Sentences Act 1992 (Qld), s 159A

R v Armstrong[2005] QCA 116, followed
R v Christie(2000) 115 A Crim R 461; [2000] QCA 165, followed
R vGabbert[2010] QCA 133, followed
R v Kennedy[2000] QCA 140, followed
R v Kitson[2008] QCA 86, considered

COUNSEL:

The applicant appeared on his own behalf
G Cummings for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

GOTTERSON JA: I agree with the orders…

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 Jamieson

Details

AGLC: R v Jamieson [2016] QCA 11
Case: [2016] QCA 11
Decision Date: 5 February 2016

CaseChat Overview and Summary

The case of R v Jamieson involved an appeal against the sentence imposed on the applicant following his guilty plea to multiple charges under the Drugs Misuse Act 1986 (Qld). The charges included the unlawful supply and possession of dangerous drugs, namely cannabis and methylamphetamine, as well as the unlawful possession of items for use in the commission of a crime. The court had imposed a sentence of 18 months imprisonment on each count, to be served concurrently. Additionally, six days of pre-sentence custody were declared as time served, under Section 159A of the Penalties and Sentences Act 1992 (Qld). The parole release date was set at nine months, which was half of the head sentence, but this did not take into account the six days of pre-sentence custody.

The legal issues before the court were whether the sentence was manifestly excessive, particularly in respect to the setting of the parole release date. The applicant argued that the parole release date should consider the six days of pre-sentence custody, as required by the legislation. The court had to determine if the original sentencing court had correctly applied the law in setting the parole release date and if the overall sentence was appropriate given the circumstances of the case.

The court found that while the overall sentence was appropriate, the setting of the parole release date was incorrect as it did not account for the six days of pre-sentence custody. The court held that the parole release date should be set earlier to reflect this oversight. The court acknowledged the applicant's history and the fact that his offending occurred while he was subject to a suspended sentence. The court concluded that, considering these factors, the parole release date should be no later than six months. Therefore, the court granted the appeal, set aside the original orders regarding the parole release date, and fixed the new parole release date at 18 March 2015.

Orders

Orders of the court

1. The application for leave to appeal be granted.

2. The appeal is allowed.

3. Set aside the orders made on 26 September 2014 in so far as they:

a. declared that the offender was held in pre-sentence custody for six days between 19 September 2014 and 26 September 2014; and

b. set the parole release date at 26 June 2015.

4. In lieu thereof:

a. pursuant to Section 159A of the Penalties and Sentences Act 1992 (Qld), it is stated that the offender was held in pre-sentence custody for six days between 20 September 2014 and 25 September 2014 inclusive; and

b. the date the offender be released on parole be fixed at 18 March 2015.

5. Otherwise confirm the orders made on 26 September 2014.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view, acknowledging that Mr Jamieson’s offending occurred while subject to a suspended sentence, and his history, the matters referred to in paragraph [60] above weigh against setting the parole release date later than six months.Conclusion and orders For the reasons given I would order:1.The application for leave to appeal be granted.2.The appeal is allowed.3.Set aside the orders made on 26 September 2014 in so far as they:(a) declared that the offender was held in pre-sentence custody for six days between 19 September 2014 and 26 September 2014; and(b) set the parole release date at 26 June 2015.4.In lieu thereof:(a) pursuant to Section 159A of the Penalties and Sentences Act 1992 (Qld), it is stated that the offender was held in pre-sentence custody for six days between 20 September 2014 and 25 September 2014 inclusive; and(b) the date the offender be released on parole be fixed at 18 March 2015.5.Otherwise confirm the orders made on 26 September 2014. PHILIPPIDES JA: For the reasons given by Morrison JA, I agree with the orders proposed by his Honour.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v Jamieson [2016] QCA 11
PARTIES:	R v JAMIESON, Ryan Michael (applicant)
FILE NO/S:	CA No 287 of 2014 DC No 52 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport – Date of Sentence: 26 September 2014
DELIVERED ON:	5 February 2016
DELIVERED AT:	Brisbane
HEARING DATE:	21 August 2015
JUDGES:	Gotterson and Morrison and Philippides JJA 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 be granted. 2. The appeal is allowed. 3. Set aside the orders made on 26 September 2014 in so far as they: a. declared that the offender was held in pre-sentence custody for six days between 19 September 2014 and 26 September 2014; and b. set the parole release date at 26 June 2015. 4. In lieu thereof: *a. pursuant to Section 159A of the Penalties and Sentences Act* 1992 (Qld), it is stated that the offender was held in pre-sentence custody for six days between 20 September 2014 and 25 September 2014 inclusive; and b. the date the offender be released on parole be fixed at 18 March 2015. 5. Otherwise confirm the orders made on 26 September 2014.**
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to a number of charges under the Drugs Misuse Act 1986 (Qld), namely unlawfully supplying the dangerous drugs cannabis and methylamphetamine, unlawful possession of the dangerous drugs cannabis and methylamphetamine, and unlawful possession of things for use in the commission of a crime, namely the possession of a dangerous drug – where 18 months imprisonment was imposed on each count, all to be served concurrently – where six days pre-sentence custody was declared as time served under s 159A of the Penalties and Sentences Act 1992 (Qld) – where the parole release date was set at nine months as half of the head sentence – where the parole release date did not take into account the six days served in pre-sentence custody – whether the sentence was manifestly excessive, only in respect to the setting of the parole release date Criminal Code (Qld), s 564(2), s 573 Criminal Practice Rules 1999 (Qld) Drugs Misuse Act 1986 (Qld), s 6, s 6(1), s 6(2), s 129(1), pt 2 Penalties and Sentences Act 1992 (Qld), s 159A R v Armstrong[2005] QCA 116, followed R v Christie(2000) 115 A Crim R 461; [2000] QCA 165, followed R vGabbert[2010] QCA 133, followed R v Kennedy[2000] QCA 140, followed R v Kitson[2008] QCA 86, considered
COUNSEL:	The applicant appeared on his own behalf G Cummings for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent