R v Lowe

Case [2004] QCA 398 29 October 2004

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Lowe [2004] QCA 398

PARTIES:

R
v
LOWE, Dennis James
(appellant/applicant)

FILE NO/S:

CA No 389 of 2003
SC No 509 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

6 July 2004, 7 July 2004

JUDGES:

Davies, Williams and Jerrard JJA
Judgment of the Court

ORDERS:

1.   Appeal against conviction dismissed

2.   Application for leave to appeal against sentence and appeal against sentence allowed on all counts

3.   Set aside sentences on all counts

4.   Order that a sentence of 14 years imprisonment be imposed in respect of count 1, and order that concurrent terms of one year’s imprisonment be imposed on counts 2 to 10 inclusive

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – JOINT TRIAL OF SEVERAL PERSONS – where appellant gave evidence against co-accused – where “accomplice warning” given – where trial judge did not direct the jury that the warning given applied only to the jury’s consideration of the case against the co-accused and not in the case against the appellant – whether trial judge failed to maintain the balance in accordance with the reasoning in Webb v The Queen – whether misdirection occasioned a substantial miscarriage of justice – whether appellant lost a chance of acquittal fairly open

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where appellant convicted of one count of trafficking in methylamphetamine and other drug related offences including production of methylamphetamine after a trial – where appellant received a head sentence of 18 years imprisonment – where trafficking occurred over a period of 20 months – whether sentence manifestly excessive

R v Allen & Edwards [1973] Qd R 395, cited
R v Barrow [1999] QCA 56; [2001] 2 Qd R 525, cited
R v Christensen [2002] QCA 113; CA No 313 of 2001, CA No 314 of 2001, 22 March 2002, cited
R v Johnston [2004] NSWCCA 58; CA No 60250 of 2002, 18 March 2004, considered

R v Lewis and Baira [1996] QCA 405; CA No 252 of 1996, CA No 253 of 1996, CA No 290 of 1996, 18 October 1996, cited
R v Walton CA No 257 of 1989, 22 November 1991, cited
Robinson v The Queen (1991) 180 CLR 531, applied
Webb v The Queen (1994) 181 CLR 41, applied

COUNSEL:

D Grace QC, with M Croucher, for the appellant
P F Rutledge, with T A Fuller, for the respondent

SOLICITORS:

Ryan & Bosscher Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: On 21 November 2003 Dennis Lowe was convicted after a trial of a number of serious drug related charges,…

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 Lowe

Details

AGLC: R v Lowe [2004] QCA 398
Case: [2004] QCA 398
Decision Date: 29 October 2004

CaseChat Overview and Summary

In the case of R v Lowe, the appellant was convicted of trafficking in methylamphetamine and other related drug offences, following a trial in the Supreme Court of South Australia. The appellant appealed against both his conviction and his sentence. The primary issue in the appeal was whether the trial judge’s failure to direct the jury that the “accomplice warning” applied only to the co-accused constituted a misdirection that led to a substantial miscarriage of justice. Additionally, the appeal questioned whether the sentence imposed was manifestly excessive.

The court held that the trial judge’s failure to clarify the scope of the “accomplice warning” was a misdirection, as it did not limit the warning’s application to the co-accused, thus affecting the jury's consideration of the evidence against the appellant. However, despite this misdirection, the court concluded that it did not occasion a substantial miscarriage of justice because the evidence against the appellant was overwhelming, and he did not lose a chance of acquittal fairly open to him. The court determined that the conviction should stand, but the sentence was manifestly excessive given the nature and duration of the trafficking activities, which spanned 20 months. The sentence of 18 years imprisonment was deemed disproportionate to the offences committed.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence and appeal against sentence allowed on all counts

3. Set aside sentences on all counts

4. Order that a sentence of 14 years imprisonment be imposed in respect of count 1, and order that concurrent terms of one year’s imprisonment be imposed on counts 2 to 10 inclusive

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.

Citations

AGLC Citation

R v Lowe [2004] QCA 398

Most Recent Citation

R v Pearl [2005] QCA 237

Cases citing this decision · 9 of 9 shown

R v Stevens
[2017] QCA 61 Para 7

…In addition the respondent relied at sentence on R v Lowe [2004] QCA 398; R v Rodd ex parte A-G (Qld) [2008] QCA 341; R v Nabhan & Kostopoulos [2007] QCA 266; R v Markovski [2009] QCA 299; R v Feakes [2009] QCA 376; R v Johnson [2014] QCA 79 and R v McGinniss [2015] QCA 34.…
R v Gardner (Senior)
[2012] QCA 290 Para 1

…of 10 to 12 years imprisonment and referred to the additional cases of R v Wittwer [10], R v Lowe [11], and R v Kerma .[12] [10][1995] QCA 452. [11] [2004] QCA 398. [12][2006] QCA 127.…
R v O'Brien
[2009] QCA 82 Para 1

…d is supported by decisions in cases of comparable seriousness: see, eg, R v Jacobs, [16] R v Lowe ,[17] and R v Cannon. [18] [16][1997] QCA 114. [17][2004] QCA 398. [18][2007] QCA 205.…
R v Adams
[2009] QCA 56 Para 1

…term of imprisonment on Adams. She imposed an 11 year term of imprisonment on Plaszewski to reflect his worse criminal history. [1][2003] QCA 183. [2][2004] QCA 398. [3][2006] QCA 174.…
R v. Jenkins, Rollason & Brophy
[2008] QCA 369 Para 1

…17 years imprisonment was manifestly excessive; a sentence in the range of 13 to 14 years imprisonment should be substituted. [14][2007] QCA 205. [15][2004] QCA 398. [16][2007] QCA 266. [17][2006] QCA 311.…
Cronin v The State of Western Australia
[2007] WASCA 159

…bke v The Queen [2007] HCA 30 R v Cheema [1994] 1 WLR 147 R v Henning, unreported; CCA SCt of NSW; 11 May 1990 R v Johnston [2004] NSWCCA 58 R v Lowe [2004] QCA 398 R v Pearl [2005] QCA 237 Webb v The Queen (1994) 181 CLR 41 Weiss v The Queen (2005) 224 CLR 300…
R v Cannon
[2007] QCA 205 Para 1

…ars to allow for the offender's ill-health. The offender there was slightly older than the present appellant and had a long term criminal history. [9][2004] QCA 398…
Robinson v The State of Western Australia
[2006] WASCA 90

…(1985) 159 CLR 45 R v Britman & Hall [1983] 1 WLR 350 R v Henning, unreported; CCA SCt of NSW; 11 May 1990 R v Lewis (1998) 103 A Crim R 304 R v Lowe [2004] QCA 398 R v Perrier (No 1) [1991] 1 VR 697 R v Sultana (1994) 74 A Crim R 27 Tabe vThe Queen [2005] HCA 59; (2005) 79 ALJR 1890…
R v Pearl
[2005] QCA 237 Para 1

…Whether a direction of the character now advanced should be given falls quintessentially within the discretion of the trial Judge ( R v Lowe [2004] QCA 398, para 14), and a judge must be allowed “considerable latitude” in his or her approach to that issue ( Webb & Hay v R , p 81). While the question was not expre…

View all 9 citing cases →

Cases cited in this decision · 8 of 8 shown

R v Zagata
[2004] QCA 349 Para 1

…gata was convicted on counts equivalent to counts 3 and 4, but those convictions were set aside by this court on 24 September 2004.[1] [1] R v Zagata [2004] QCA 349…
R v Johnston
[2004] NSWCCA 58 Para 1

…In R v Johnston [2004] NSWCCA 58 the New South Wales Court of Appeal dealt with a case in which each of two men accused of murder gave evidence, and while the appellant Johnston gave evidence that a co-accused Watts had confessed to committing the murder, Watts (who was acquitted) swore that the appellant Johnston…
R v Christensen
[2002] QCA 113 Para 1

…A sentence of 10 years imprisonment was upheld in a matter of R v Kim Christensen [2002] QCA 113, who pleaded guilty to trafficking in methylamphetamine over the four years between 1 January 1997 and 17 January 2001. That four years of trafficking in the drug generated a profit of some $500,000.00, and Kim Christ…
Robinson v The Queen
[1999] HCA 42 Para 1

…in his own defence more carefully than that of other witnesses and thus the direction undermined the presumption of innocence: Robinson v The Queen (1991) 180 CLR 531.…
R v Barrow
[1999] QCA 56

…onths – whether sentence manifestly excessive R v Allen & Edwards [1973] Qd R 395, cited R v Barrow [1999] QCA 56; [2001] 2 Qd R 525, cited R v Christensen [2002] QCA 113; CA No 313 of 2001, CA No 314 of 2001, 22 March 2002, cited R v Johnston [2004] NSWCCA 58; CA No 60250 of 2002, 18 March 2004, considered R v…
R v Lewis & Baira
[1996] QCA 405 Para 1

…clear that the warning applies only when the jury are considering the case against the co-defendant. (See too the observations in R v Lewis and Baira [1996] QCA 405 at pages 7 - 8).…
Webb v the Queen
[1994] HCA 30 Para 1

…e contents of the first extract, prejudiced Lowe’s defence and offended the principle underlying the decision of the High Court in Webb v The Queen (1994) 181 CLR 41. Specifically it was submitted that the learned trial judge effectively directed the jury that they should scrutinise the evidence of Lowe in his own d…
Robinson v The Queen
[1991] HCA 38 Para 1

…the evidence of Lowe in his own defence more carefully than that of other witnesses and thus the direction undermined the presumption of innocence: Robinson v The Queen (1991) 180 CLR 531.…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v Lowe [2004] QCA 398
PARTIES:	R v LOWE, Dennis James (appellant/applicant)
FILE NO/S:	CA No 389 of 2003 SC No 509 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	29 October 2004
DELIVERED AT:	Brisbane
HEARING DATE:	6 July 2004, 7 July 2004
JUDGES:	Davies, Williams and Jerrard JJA Judgment of the Court
ORDERS:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence and appeal against sentence allowed on all counts 3. Set aside sentences on all counts 4. Order that a sentence of 14 years imprisonment be imposed in respect of count 1, and order that concurrent terms of one year’s imprisonment be imposed on counts 2 to 10 inclusive
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – JOINT TRIAL OF SEVERAL PERSONS – where appellant gave evidence against co-accused – where “accomplice warning” given – where trial judge did not direct the jury that the warning given applied only to the jury’s consideration of the case against the co-accused and not in the case against the appellant – whether trial judge failed to maintain the balance in accordance with the reasoning in Webb v The Queen – whether misdirection occasioned a substantial miscarriage of justice – whether appellant lost a chance of acquittal fairly open CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where appellant convicted of one count of trafficking in methylamphetamine and other drug related offences including production of methylamphetamine after a trial – where appellant received a head sentence of 18 years imprisonment – where trafficking occurred over a period of 20 months – whether sentence manifestly excessive R v Allen & Edwards [1973] Qd R 395, cited R v Barrow [1999] QCA 56; [2001] 2 Qd R 525, cited R v Christensen [2002] QCA 113; CA No 313 of 2001, CA No 314 of 2001, 22 March 2002, cited R v Johnston [2004] NSWCCA 58; CA No 60250 of 2002, 18 March 2004, considered R v Lewis and Baira [1996] QCA 405; CA No 252 of 1996, CA No 253 of 1996, CA No 290 of 1996, 18 October 1996, cited R v Walton CA No 257 of 1989, 22 November 1991, cited Robinson v The Queen (1991) 180 CLR 531, applied Webb v The Queen (1994) 181 CLR 41, applied
COUNSEL:	D Grace QC, with M Croucher, for the appellant P F Rutledge, with T A Fuller, for the respondent
SOLICITORS:	Ryan & Bosscher Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent