R v JQ - [2011] QCA 212

SUPREME COURT OF QUEENSLAND

CITATION:

R v JQ [2011] QCA 212

PARTIES:

R
v
JQ
(applicant)

FILE NO/S:

CA No 38 of 2011
SC No 203 of 2011
SC No 513 of 2010
SC No 588 of 2010
SC No 2806 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

30 August 2011

DELIVERED AT:

Brisbane

HEARING DATE:

26 May 2011

JUDGES:

Muir and White JJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.Grant the application for leave to appeal.

2.Allow the appeal for the limited purpose of stating (in camera) the sentence which would have been imposed but for s 13A considerations.

3.Otherwise confirm the sentences imposed below.

4.        The further reasons for judgment handed down to the parties today be not further published and a copy be placed in a sealed envelope and it be opened only by order of the Court or upon an application under s 188(2) of the Penalties and Sentences Act.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER – where the applicant pleaded guilty to trafficking of cannabis sativa, possession of a sum of money obtained from the trafficking, possession of cannabis sativa with a circumstance of aggravation, possession of a pump action shotgun without being the holder of a licence and summary offences – where the applicant was sentenced to three and a half years imprisonment to be suspended after serving six months with an operational period of three and a half years for the trafficking offence and six months imprisonment for the balance of the indictable offences – where the applicant was convicted but not further punished for the summary offences and was re-sentenced to 12 months imprisonment suspended after six months with an operational period of 18 months for an offence dealt with in the District Court in 2000 by way of community-based orders – where the applicant claimed that the requirement to serve any term of actual imprisonment was manifestly excessive in the circumstances

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE – whether it is in the interests of justice to admit further evidence relating to the safety of the prisoner in prison

Corrective Services Act 2006 (Qld), s 176
Criminal Code 1899 (Qld), s 668E(3), s 671B
Penalties and Sentences Act 1992 (Qld), s 9(2)(i), s 13A, s 188(1)(c)

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited
Markarian v The Queen [2005] 228 CLR 357; [2005] HCA 25, cited
R v Berolli [1996] QCA 204, considered
R v Le Blowitz [1998] 1 Qd R 303, [1996] QCA 451, considered
R v Brienza[2010] QCA 15, considered
R v Broad & Prior[2010]…

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 JQ

Details

AGLC: R v JQ [2011] QCA 212
Case: [2011] QCA 212
Decision Date: 30 August 2011

CaseChat Overview and Summary

The applicant, JQ, appealed against the sentence imposed by the lower court following a guilty plea to multiple charges including trafficking of cannabis sativa, possession of money obtained from trafficking, possession of cannabis sativa with aggravation, possession of a shotgun without a licence, and summary offences. The appeal was heard by the higher court. The primary issue before the court was whether the sentence imposed was manifestly excessive and whether it was in the interests of justice to consider additional evidence relating to the safety of the prisoner in prison.

The court found that while the applicant's sentence, which included a suspended term of three and a half years for the trafficking offence and six months for the balance of indictable offences, was indeed severe, it was not manifestly excessive. The court took into account the seriousness of the crimes, the need for deterrence, and the applicant's criminal history. The court also considered the additional evidence concerning the applicant's safety in prison, concluding that it did not warrant a reduction in sentence. However, the court granted leave to appeal and allowed the appeal for the limited purpose of stating, in camera, the sentence that would have been imposed without considering the provisions of section 13A. The rest of the sentences were confirmed as imposed by the lower court.

The court made an order to grant the application for leave to appeal, allow the appeal in part to state the hypothetical sentence in camera, and confirm the sentences imposed by the lower court. The further reasons for judgment were not to be published and were to be placed in a sealed envelope, only to be opened by order of the Court or upon an application under section 188(2) of the Penalties and Sentences Act.

Orders

Orders of the court

1.Grant the application for leave to appeal.

2.Allow the appeal for the limited purpose of stating (in camera) the sentence which would have been imposed but for s 13A considerations.

3.Otherwise confirm the sentences imposed below.

4. The further reasons for judgment handed down to the parties today be not further published and a copy be placed in a sealed envelope and it be opened only by order of the Court or upon an application under s 188(2) of the Penalties and Sentences Act.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v JQ [2011] QCA 212
PARTIES:	R v JQ (applicant)
FILE NO/S:	CA No 38 of 2011 SC No 203 of 2011 SC No 513 of 2010 SC No 588 of 2010 SC No 2806 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	30 August 2011
DELIVERED AT:	Brisbane
HEARING DATE:	26 May 2011
JUDGES:	Muir and White JJA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1.Grant the application for leave to appeal. 2.Allow the appeal for the limited purpose of stating (in camera) the sentence which would have been imposed but for s 13A considerations. 3.Otherwise confirm the sentences imposed below. 4. The further reasons for judgment handed down to the parties today be not further published and a copy be placed in a sealed envelope and it be opened only by order of the Court or upon an application under s 188(2) of the Penalties and Sentences Act.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER – where the applicant pleaded guilty to trafficking of cannabis sativa, possession of a sum of money obtained from the trafficking, possession of cannabis sativa with a circumstance of aggravation, possession of a pump action shotgun without being the holder of a licence and summary offences – where the applicant was sentenced to three and a half years imprisonment to be suspended after serving six months with an operational period of three and a half years for the trafficking offence and six months imprisonment for the balance of the indictable offences – where the applicant was convicted but not further punished for the summary offences and was re-sentenced to 12 months imprisonment suspended after six months with an operational period of 18 months for an offence dealt with in the District Court in 2000 by way of community-based orders – where the applicant claimed that the requirement to serve any term of actual imprisonment was manifestly excessive in the circumstances CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE – whether it is in the interests of justice to admit further evidence relating to the safety of the prisoner in prison Corrective Services Act 2006 (Qld), s 176 Criminal Code 1899 (Qld), s 668E(3), s 671B Penalties and Sentences Act 1992 (Qld), s 9(2)(i), s 13A, s 188(1)(c) AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited Markarian v The Queen [2005] 228 CLR 357; [2005] HCA 25, cited R v Berolli [1996] QCA 204, considered R v Le Blowitz [1998] 1 Qd R 303, [1996] QCA 451, considered R v Brienza[2010] QCA 15, considered R v Broad & Prior[2010]…