R v Lee - [2024] QCA 36

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lee [2024] QCA 36

PARTIES:

R
v
LEE, Mark Andrew
(applicant)

FILE NO/S:

CA No 204 of 2023
DC No 22 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 4 October 2023 (Allen KC DCJ)

DELIVERED ON:

19 March 2024

DELIVERED AT:

Brisbane

HEARING DATE:

14 March 2024

JUDGES:

Morrison JA and Fraser AJA and Burns J

ORDER:

Application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to 16 counts of supplying a dangerous drug – where the applicant was sentenced to an effective head term of 18 months imprisonment – where the applicant’s release on parole was fixed after he serves six months – where it was submitted that the sentencing judge erred by failing to state in open court that the applicant’s pleas of guilty were taken into account in determining the sentence to be imposed as required by s 13(3) of the Penalties and Sentences Act 1992 (Qld) – where it was submitted that the sentencing judge did not take into account the principle in s 9(2)(a)(i) of the Penalties and Sentences Act 1992 (Qld) that a sentence of imprisonment should only be imposed as a last resort – where it was submitted that the sentencing judge did not take into account the principle in s 9(2)(a)(ii) of the Penalties and Sentences Act 1992 (Qld) that a sentence allowing the offender to remain in the community is preferable – where it was submitted that resultingly there were errors in the exercise of the sentencing discretion – whether the sentencing judge erred in the exercise of the sentencing discretion – whether, otherwise, the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9(2)(a), s 13(3)

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
R v Anable[2005] QCA 208, cited
R v Clanfield[2022] QCA 147, cited
R v Dwyer[2008] QCA 117, followed
R v Jamieson[2016] QCA 11, cited
R v Kleimeyer[2018] QCA 9, cited
R v Neto[2016] QCA 217, cited
R v Safi[2015] QCA 13, followed
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited

COUNSEL:

C R Smith for the applicant
J T Aylward for the respondent

SOLICITORS:

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

MORRISON JA: I agree with Burns J.
FRASER AJA: I agree with Burns J.
BURNS J: This is an application for leave to appeal against a sentence imposed in the District Court at Brisbane on 4 October 2023. After pleading guilty to 16 counts of supplying a dangerous drug, the applicant was sentenced to an effective head term of 18 months imprisonment with release…

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 Lee

Details

AGLC: R v Lee [2024] QCA 36
Case: [2024] QCA 36
Decision Date: 19 March 2024

CaseChat Overview and Summary

The appellant, Lee, was convicted on 16 counts of supplying a dangerous drug and was sentenced to an effective head term of 18 months imprisonment by the District Court of Queensland. Lee's appeal against his sentence was heard by the Queensland Court of Appeal, where he argued that the sentencing judge erred in several respects, including by failing to acknowledge that his guilty pleas were taken into account, and by not adhering to the principles outlined in sections 9(2)(a)(i) and 9(2)(a)(ii) of the Penalties and Sentences Act 1992 (Qld). These principles pertain to the imposition of imprisonment as a last resort and the preference for sentences that allow the offender to remain in the community.

The court examined whether the sentencing judge's exercise of discretion was flawed due to the alleged errors and whether the sentence was manifestly excessive. The arguments presented by Lee included the assertion that the sentencing judge did not properly consider the mitigating factors of his guilty pleas and the statutory principles guiding sentencing. The court considered the totality of the circumstances, including the nature of the offences, Lee's criminal history, and the impact of his actions on the community.

In its decision, the court found that there was no error in the sentencing judge's consideration of Lee's guilty pleas, and that the sentence imposed was not manifestly excessive. The court determined that the sentencing judge had appropriately balanced the need for punishment with the principles of deterrence and rehabilitation, and that the sentence reflected the seriousness of the offences. Consequently, the court concluded that the appeal against sentence should be dismissed.

The court refused Lee's application for leave to appeal against his sentence, affirming the decision of the District Court of Queensland.

Orders

Orders of the court

Application for leave to appeal against sentence is refused.

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 Lee [2024] QCA 36
PARTIES:	R v LEE, Mark Andrew (applicant)
FILE NO/S:	CA No 204 of 2023 DC No 22 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 4 October 2023 (Allen KC DCJ)
DELIVERED ON:	19 March 2024
DELIVERED AT:	Brisbane
HEARING DATE:	14 March 2024
JUDGES:	Morrison JA and Fraser AJA and Burns J
ORDER:	Application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to 16 counts of supplying a dangerous drug – where the applicant was sentenced to an effective head term of 18 months imprisonment – where the applicant’s release on parole was fixed after he serves six months – where it was submitted that the sentencing judge erred by failing to state in open court that the applicant’s pleas of guilty were taken into account in determining the sentence to be imposed as required by s 13(3) of the Penalties and Sentences Act 1992 (Qld) – where it was submitted that the sentencing judge did not take into account the principle in s 9(2)(a)(i) of the Penalties and Sentences Act 1992 (Qld) that a sentence of imprisonment should only be imposed as a last resort – where it was submitted that the sentencing judge did not take into account the principle in s 9(2)(a)(ii) of the Penalties and Sentences Act 1992 (Qld) that a sentence allowing the offender to remain in the community is preferable – where it was submitted that resultingly there were errors in the exercise of the sentencing discretion – whether the sentencing judge erred in the exercise of the sentencing discretion – whether, otherwise, the sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 9(2)(a), s 13(3) Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited R v Anable[2005] QCA 208, cited R v Clanfield[2022] QCA 147, cited R v Dwyer[2008] QCA 117, followed R v Jamieson[2016] QCA 11, cited R v Kleimeyer[2018] QCA 9, cited R v Neto[2016] QCA 217, cited R v Safi[2015] QCA 13, followed Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited
COUNSEL:	C R Smith for the applicant J T Aylward for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent