R v Lindsay - [2004] QCA 444

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lindsay [2004] QCA 444

PARTIES:

R
v
LINDSAY, Howard Kerry
(applicant)

FILE NO/S:

CA No 327 of 2004
SC No 255 of 2003
SC No 602 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

19 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

19 November 2004

JUDGES:

Jerrard JA and Mackenzie and Philippides JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where applicant had prior convictions – where substantially different from the present offence – where committed 10 years previously – where only dealt with five years before commission of present offence – whether penalty disproportionate to the gravity of the offence under consideration – whether learned sentencing judge improperly inflated the sentence because of convictions

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where war service following conscription – where no specific reference by learned sentencing judge to war service – where “other circumstances” mentioned – where learned sentencing judge placed emphasis on general deterrence – whether the applicant’s war service was sufficiently recognised

COUNSEL:

A J Kimmins for the applicant
R Pointing for the respondent

SOLICITORS:

A W Bale & Son for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MACKENZIE J: The applicant pleaded guilty to producing cannabis sativa in excess of 100 plants and associated summary charges of possession of irrigation equipment and a Cryovac machine as well as two summary charges of failing to securely store weapons.

He was sentenced to five years imprisonment, suspended after 20 months with an operational period of five years for the indictable offence. He was convicted but not further punished in respect of the summary offences. He seeks leave to argue that the sentence imposed upon him is manifestly excessive.

The main focus of submissions before us today was on the period of suspension rather than the sentence of five years although a submission was maintained that a sentence of four years may have been a more appropriate head sentence with a correspondingly lower period of suspension.

The facts of the matter were that when police executed search warrants of two properties near Gympie, part owned by the applicant, they found two large plots of cannabis containing about 5000 plants on the first at Tandur Road, and 11 plots containing about 7000 plants at the other at Burridge Road. All of the crops were irrigated.

The plants at Tandur Road ranged from 20 to 120 centimetres in height. There was also a quantity of cannabis head spread over…

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.

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Details

Case: [2004] QCA 444
Decision Date: 19 November 2004

CaseChat Overview and Summary

In the case of R v Lindsay, the applicant sought to appeal against his sentence on the grounds that it was disproportionately severe and that the sentencing judge had improperly considered his prior convictions. The application was dismissed by the court. The applicant, having been convicted of a criminal offence, sought to appeal against the sentence imposed, arguing that it was excessive and that the sentencing judge had improperly considered his prior convictions, which were significantly different from the current offence and had been committed over a decade prior. The applicant also argued that his war service, which followed conscription, had not been sufficiently recognised by the sentencing judge.

The court was required to determine whether the penalty imposed was disproportionate to the gravity of the offence under consideration and whether the sentencing judge had improperly inflated the sentence because of the applicant's prior convictions. The court was also required to determine whether the applicant's war service had been sufficiently recognised by the sentencing judge. The court found that the sentencing judge had appropriately considered all relevant factors, including the applicant's prior convictions and war service, and that the sentence imposed was not disproportionate to the gravity of the offence. The court further found that the applicant's war service had been appropriately recognised in the sentencing process.

The court dismissed the application for leave to appeal against the sentence, finding that there were no grounds for an appeal. The court held that the sentencing judge had appropriately exercised their discretion in imposing the sentence and that the sentence was not excessive or disproportionate to the gravity of the offence. The court further held that the applicant's prior convictions and war service had been appropriately considered in the sentencing process. The court found that the applicant had not demonstrated that the sentence was manifestly excessive or that the sentencing judge had improperly considered his prior convictions or war service. The court therefore dismissed the application for leave to appeal against the sentence.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Lindsay [2004] QCA 444
PARTIES:	R v LINDSAY, Howard Kerry (applicant)
FILE NO/S:	CA No 327 of 2004 SC No 255 of 2003 SC No 602 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	19 November 2004
DELIVERED AT:	Brisbane
HEARING DATE:	19 November 2004
JUDGES:	Jerrard JA and Mackenzie and Philippides JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where applicant had prior convictions – where substantially different from the present offence – where committed 10 years previously – where only dealt with five years before commission of present offence – whether penalty disproportionate to the gravity of the offence under consideration – whether learned sentencing judge improperly inflated the sentence because of convictions CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where war service following conscription – where no specific reference by learned sentencing judge to war service – where “other circumstances” mentioned – where learned sentencing judge placed emphasis on general deterrence – whether the applicant’s war service was sufficiently recognised
COUNSEL:	A J Kimmins for the applicant R Pointing for the respondent
SOLICITORS:	A W Bale & Son for the applicant Director of Public Prosecutions (Queensland) for the respondent