R v Lawson - [2012] QCA 229

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lawson [2012] QCA 229

PARTIES:

R
v
LAWSON, Kevin David
(applicant/appellant)

FILE NO/S:

CA No 60 of 2012
SC No 153 of 2009
SC No 705 of 2011
SC No 101 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

28 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

2 August 2012

JUDGES:

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

ORDERS:

1. Application for leave to appeal against sentence granted.

2. Appeal allowed.

3. Sentences below are set aside.

4. It is ordered in lieu thereof:

(a) In respect of counts 1 and 2 that the applicant be sentenced to imprisonment for a period of three years to be suspended after the applicant serves nine months imprisonment; and that he not commit another offence punishable by imprisonment within a period of four years to avoid being dealt with for the suspended term of imprisonment.

(b) In respect of counts 3 and 4, that the applicant be sentenced to imprisonment for a period of three years to be suspended after the applicant serves nine months imprisonment; and that he not commit another offence punishable by imprisonment within a period of four years to avoid being dealt with for the suspended term of imprisonment.

(c) In respect of count 5, that the applicant be sentenced to imprisonment for a period of 12 months suspended after the applicant serves six months imprisonment; and that he not commit another offence punishable by imprisonment within a period of 18 months to avoid being dealt with for the suspended term of imprisonment.

(d) In respect of the breach of probation, that the applicant be re‑sentenced on the original offences and that he be imprisoned for a period of 12 months suspended after the applicant serves six months imprisonment; and that he not commit another offence punishable by imprisonment within a period of 18 months to avoid being dealt with for the suspended term of imprisonment.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to two counts of production of the dangerous drug methylamphetamine, one count of unlawful possession of pseudo-ephedrine, one count of unlawful possession of methylamphetamine, and one count of possession of things used in connection with the production of a dangerous drug – where applicant sentenced to imprisonment for five years suspended after 20 months for an operational period of five years on the production charges – where applicant sentenced to imprisonment for three years suspended after 20 months for an operational period of five years on the possession of dangerous drugs charges – where applicant sentenced to 12 months imprisonment on the possession of things used in connection with the production of a dangerous drug charge – where breach of probation also found…

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 Lawson

Details

AGLC: R v Lawson [2012] QCA 229
Case: [2012] QCA 229
Decision Date: 28 August 2012

CaseChat Overview and Summary

The appellant in this case pleaded guilty to multiple drug-related offences, including production and possession of dangerous drugs. The respondent sought to appeal against the sentence imposed, claiming it was manifestly excessive. The case was heard by the court of appeal, which was tasked with determining whether the original sentences were indeed excessive and whether the learned sentencing judge had failed to adequately consider the appellant's level of cooperation, his addiction, the personal use of the drugs, and the extent of his rehabilitation. The court was also required to assess whether these factors warranted a different outcome in terms of the sentences imposed.

The court of appeal found that the original sentences were indeed manifestly excessive, taking into account the appellant's cooperation, admissions, addiction, personal use of the drugs, and rehabilitation efforts. The court considered these factors to be significant and relevant to the sentencing process, and found that the learned sentencing judge had not sufficiently weighed them. The court also noted that the sentences imposed were disproportionate to the nature and circumstances of the offences, as well as to the appellant's personal situation. As a result, the appeal was allowed and the original sentences were set aside.

In lieu of the original sentences, the court of appeal imposed new sentences that took into account the factors previously overlooked by the learned sentencing judge. The appellant was sentenced to imprisonment for three years to be suspended after serving nine months for the production charges, and for three years to be suspended after serving nine months for the possession charges. For the possession of items used in the production of dangerous drugs, the appellant was sentenced to 12 months imprisonment, suspended after six months. Additionally, the appellant was re-sentenced for the breach of probation, receiving a sentence of 12 months imprisonment, suspended after six months. These new sentences included conditions to avoid being dealt with for the suspended terms if the appellant committed another offence punishable by imprisonment within the specified periods.

The final orders of the court of appeal included granting the application for leave to appeal against the sentence, allowing the appeal, setting aside the original sentences, and imposing new sentences as outlined above. The court also ordered that the appellant not commit another offence punishable by imprisonment within the specified periods to avoid being dealt with for the suspended terms of imprisonment.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted.

2. Appeal allowed.

3. Sentences below are set aside.

4. It is ordered in lieu thereof:

(a) In respect of counts 1 and 2 that the applicant be sentenced to imprisonment for a period of three years to be suspended after the applicant serves nine months imprisonment; and that he not commit another offence punishable by imprisonment within a period of four years to avoid being dealt with for the suspended term of imprisonment.

(b) In respect of counts 3 and 4, that the applicant be sentenced to imprisonment for a period of three years to be suspended after the applicant serves nine months imprisonment; and that he not commit another offence punishable by imprisonment within a period of four years to avoid being dealt with for the suspended term of imprisonment.

(c) In respect of count 5, that the applicant be sentenced to imprisonment for a period of 12 months suspended after the applicant serves six months imprisonment; and that he not commit another offence punishable by imprisonment within a period of 18 months to avoid being dealt with for the suspended term of imprisonment.

(d) In respect of the breach of probation, that the applicant be re‑sentenced on the original offences and that he be imprisoned for a period of 12 months suspended after the applicant serves six months imprisonment; and that he not commit another offence punishable by imprisonment within a period of 18 months to avoid being dealt with for the suspended term of imprisonment.

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 Lawson [2012] QCA 229
PARTIES:	R v LAWSON, Kevin David (applicant/appellant)
FILE NO/S:	CA No 60 of 2012 SC No 153 of 2009 SC No 705 of 2011 SC No 101 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	28 August 2012
DELIVERED AT:	Brisbane
HEARING DATE:	2 August 2012
JUDGES:	Muir and White JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence granted. 2. Appeal allowed. 3. Sentences below are set aside. 4. It is ordered in lieu thereof: (a) In respect of counts 1 and 2 that the applicant be sentenced to imprisonment for a period of three years to be suspended after the applicant serves nine months imprisonment; and that he not commit another offence punishable by imprisonment within a period of four years to avoid being dealt with for the suspended term of imprisonment. (b) In respect of counts 3 and 4, that the applicant be sentenced to imprisonment for a period of three years to be suspended after the applicant serves nine months imprisonment; and that he not commit another offence punishable by imprisonment within a period of four years to avoid being dealt with for the suspended term of imprisonment. (c) In respect of count 5, that the applicant be sentenced to imprisonment for a period of 12 months suspended after the applicant serves six months imprisonment; and that he not commit another offence punishable by imprisonment within a period of 18 months to avoid being dealt with for the suspended term of imprisonment. (d) In respect of the breach of probation, that the applicant be re‑sentenced on the original offences and that he be imprisoned for a period of 12 months suspended after the applicant serves six months imprisonment; and that he not commit another offence punishable by imprisonment within a period of 18 months to avoid being dealt with for the suspended term of imprisonment.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to two counts of production of the dangerous drug methylamphetamine, one count of unlawful possession of pseudo-ephedrine, one count of unlawful possession of methylamphetamine, and one count of possession of things used in connection with the production of a dangerous drug – where applicant sentenced to imprisonment for five years suspended after 20 months for an operational period of five years on the production charges – where applicant sentenced to imprisonment for three years suspended after 20 months for an operational period of five years on the possession of dangerous drugs charges – where applicant sentenced to 12 months imprisonment on the possession of things used in connection with the production of a dangerous drug charge – where breach of probation also found…