R v Lindsay; R v Lindsay - [2013] QCA 381

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lindsay; R v Lindsay [2013] QCA 381

PARTIES:

R
v
LINDSAY, Anthony Howard
(applicant)

R
v
LINDSAY, Howard Kerry
(applicant)

FILE NO/S:

CA No 149 of 2013
CA No 150 of 2013
SC No 12 of 2013
SC No 13 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Applications

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED ON:

17 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

25 November 2013

JUDGES:

Morrison JA and Ann Lyons and Daubney JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

In CA No 149 of 2013: The application for leave to appeal against sentence is refused.1.

In CA No 150 of 2013: The application for leave to appeal against sentence is refused.2.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant, Howard Lindsay, was charged on two separate indictments with drug offences occurring in 2009 and 2012 – where the applicant and his son, Anthony Lindsay, were co-offenders in relation to the 2012 offences – where the applicant pleaded guilty to counts of producing a dangerous drug in excess of 100 plants, possessing a dangerous drug in excess of 500 grams and possessing things used in connection with producing a dangerous drug in 2009 and counts of producing and possessing a dangerous drug in excess of 500 grams in 2012 – where the applicant was sentenced to four years imprisonment for the 2009 offences and three years imprisonment for the 2012 offences, to be served cumulatively, with a parole eligibility date after two and a half years – where the 2009 offences were committed during the operational period of an earlier term of imprisonment of five years, suspended after 20 months, in relation to production of cannabis – where the sentencing judge activated the suspended sentence in full, to be served concurrently – where the applicant was on bail in relation to the 2009 offences at the time he committed the 2012 offences – where the applicant had employed an extensive irrigation system, an industrial sized exhaust fan and an industrial sized Cryovac machine to grow over 1,500 cannabis plants on numerous plots secreted in thick bushland – where the applicant was 65 years old and had seen active service in the Vietnam War – where the applicant contended that the sentencing judge erred in concluding that the 2012 production of cannabis was sophisticated, well organised and professional – whether the sentence imposed was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – PARITY BETWEEN CO-OFFENDERS – where the applicant, Anthony Lindsay, pleaded guilty to counts of producing and possessing a dangerous drug in excess of 500 grams – where the applicant was sentenced to three…

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: [2013] QCA 381
Decision Date

CaseChat Overview and Summary

The applicants, Howard Kerry Lindsay and Anthony Howard Lindsay, were sentenced by the Supreme Court of Queensland for drug offences involving the production and possession of cannabis. Both applicants sought leave to appeal against their sentences on the grounds that they were manifestly excessive. The applicants argued that the sentencing judge erred in concluding that the 2012 production of cannabis was sophisticated, well organised, and professional, and that the sentence imposed on Anthony Lindsay lacked parity with the sentence imposed on his father, Howard Lindsay.

The Court of Appeal held that the sentencing judge's conclusion regarding the sophistication, organisation, and professionalism of the 2012 production was supported by the evidence. The scale of the proposed production, the potential profits, and the use of an extensive irrigation system, drying shed, and Cryovac machine demonstrated a large scale operation. The Court also held that the principles of totality and parity were correctly applied in the circumstances of this case, given the unique factors applicable to each applicant. The sentence imposed on Anthony Lindsay took into account the difficult factors the sentencing judge needed to consider, including the fact that Anthony was dependent on his father's income due to his son's brain tumour. The Court refused both applications for leave to appeal.

The final orders of the Court were that the application for leave to appeal against sentence in CA No 149 of 2013 was refused, and the application for leave to appeal against sentence in CA No 150 of 2013 was also refused.

Orders