R v Lowien

Case [2020] QCA 186

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lowien [2020] QCA 186

PARTIES:

R
v
LOWIEN, Gregory Leo
(applicant)

FILE NO/S:

CA No 240 of 2019
SC No 24 of 2019
SC No 74 of 2019
SC No 75 of 2019
SC No 77 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Rockhampton – Date of Sentence: 16 August 2019 (Crow J)

DELIVERED ON:

4 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

26 May 2020

JUDGES:

Sofronoff P and Fraser and Philippides JJA

ORDERS:

1.   The application for leave to appeal against sentence is granted.

2.   The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced on his own pleas of guilty to trafficking in dangerous drugs, supplying dangerous drugs, burglary in the night and in company, assault occasioning bodily harm while armed and in company and four related summary charges – where the applicant was sentenced to concurrent terms of imprisonment of 10 years for the trafficking offence (with a serious violent offence declaration automatically made), three years for the burglary offence, two years for the assault occasioning bodily harm offence and convicted but not further punished for the supplying dangerous drugs and summary offences – where the trafficking operation extended over some 10 months, primarily in methylamphetamine and MDMA and involved the applicant supplying drugs in wholesale quantities to about 15 regular customers, who on-supplied them to their own customer base – where the trafficking operation was sophisticated and involved sourcing drugs from suppliers in Melbourne, Sydney and overseas and employed others in positions akin to employees – where both parties accept that the sentencing judge erred with regard to a fact relevant to sentence, namely that the commission of the trafficking occurred after the applicant had been released from serving a term of imprisonment, which was not the case – whether, despite that error, the sentence imposed was appropriate and just in all the circumstances of the case

Criminal Code (Qld), s 651

R v Abbott[2017] QCA 57, cited
R v Assurson (2007) 174 A Crim R 78; [2007] QCA 273, cited
R v Berns[2020] QCA 36, cited
R v Bost[2014] QCA 264, cited
R v Bradforth[2003] QCA 183, cited
R v Burrows[2004] QCA 306, cited
R v Carrall[2018] QCA 355, cited
R v Corbett[2018] QCA 341, cited
R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223, cited
R v Dang[2018] QCA 331, cited
R v Delander[2019] QCA 69, cited
R v Elizalde[2006] QCA 330, cited
R v Feakes[2009] QCA 376, considered
R v Johnson[2014] QCA 79, cited
R v Kashton[2005] QCA 70, cited
R v Luu[2018] QCA 281, cited
R v McGinniss[2015] QCA 34,…

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AGLC
R v Lowien [2020] QCA 186
Case
[2020] QCA 186
Decision Date

CaseChat Overview and Summary

In the case of R v Lowien, the applicant appealed against his sentence on the grounds that it was manifestly excessive. Lowien had pleaded guilty to multiple charges, including trafficking in dangerous drugs, supplying dangerous drugs, burglary, and assault occasioning bodily harm while armed and in company. The applicant was sentenced to concurrent terms of imprisonment of 10 years for the trafficking offence, three years for the burglary offence, and two years for the assault occasioning bodily harm offence, along with convictions but no further punishment for the supplying dangerous drugs and summary offences. The applicant’s trafficking operation was extensive, lasting over 10 months and involving the supply of methylamphetamine and MDMA in wholesale quantities to about 15 regular customers. Both parties acknowledged that the sentencing judge erred in determining that the trafficking occurred after the applicant's release from imprisonment, which was not the case.

The court was required to decide whether, despite the error, the sentence imposed was appropriate and just in all the circumstances of the case. The court considered the severity and scale of the applicant's criminal enterprise, which involved a significant level of organisation and planning, as well as the risk posed to the community. The court also evaluated the applicant's personal circumstances, including his age and the nature of his involvement in the crime. The court noted that the applicant's continued involvement in trafficking while on bail for another offence was an aggravating factor. Furthermore, the court examined previous cases to compare the applicant's sentence with those imposed in similar circumstances, finding that the 10-year sentence was commensurate with the gravity of the crimes committed.

The court found that the sentence imposed was appropriate and just, considering the extensive nature of the trafficking operation, the applicant's active role, and the significant period over which the crimes were committed. The court held that the error in the sentencing judge's findings did not warrant a reduction in the sentence, as the sentence reflected the need for a heavy, deterrent penalty. Consequently, the application for leave to appeal against sentence was granted, but the appeal was dismissed, upholding the original sentence.

Orders

Orders of the court

1. The application for leave to appeal against sentence is granted.

2. The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In Abbott, a sentence of 10 years imprisonment was imposed for trafficking in methylamphetamine and cocaine (with a lesser concurrent term for a possession offence and convictions but no further punishment for other offences). Although the period of trafficking was some 17 months, the active trafficking period was about six and a half months. The trafficking was at a wholesale level. The applicant was arrested and then released on bail. He was intercepted by police in possession of methylamphetamine whilst he was in the process of delivering to a buyer for $25,000. In refusing the application for leave to appeal against sentence, this Court noted the degree of involvement of the offender in the enterprise (as compared with his co‑offender) and that his continued involvement in the enterprise whilst on bail was an aggravating factor and that the applicant’s trafficking “at a high level over a significant period of time clearly warranted a heavy, deterrent penalty”.[40][40]Abbott at [18].Conclusion The trafficking enterprise, in which the applicant, a man of mature years, played a key role was of a large scale and conducted at a wholesale level over a prolonged period, bringing a great deal of dangerous drugs into the Rockhampton area. That the whole of that offending occurred whilst on bail is an aggravating feature. Even allowing for the amelioration required to take into account the pleas, evident remorse and other matters of mitigation in the applicant’s favour, the offending warranted condign punishment. The decisions of Delander, Corbett, Luu, Tran, Barrows or Bost referred to on behalf of the applicant at sentence and before this Court on appeal do not demonstrate that a sentence of less than 10 years is required in the present case to reflect a sentence that is just, bearing in mind all of the circumstances of the case. Further, the decisions in McGinniss, Carrall, Nunn, Wainscott, Berns, Dang and Abbott support the view that, in the circumstances of this case, a sentence of 10 years imprisonment, with the consequential serious violence declaration, is an appropriate and just sentence.Orders Accordingly, the orders I propose are:1.The application for leave to appeal against sentence is granted.2.The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

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