R v McMahon - [2003] QCA 369

SUPREME COURT OF QUEENSLAND

CITATION: R v McMahon [2003] QCA 369
PARTIES: R
v
McMAHON, Andrew James
(applicant)
FILE NO/S: CA No 199 of 2003 SC No 564 of 2002
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING
COURT: Supreme Court at Brisbane
DELIVERED EX 27 August 2003
TEMPORE ON:
DELIVERED AT: Brisbane
HEARING DATE: 27 August 2003
JUDGES: McMurdo P, Dutney and Philippides J
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 refused
CATCHWORDS: CRIMINAL LAW – JUDGMENT AND PUNISHMENT –
SENTENCE –MISCELLANOUS MATTERS – where
applicant pleaded guilty to trafficking dangerous drug and
sentenced to five years imprisonment suspended after two
years, with an operational period of five years – where
applicant in process of promising rehabilitation – whether
learned primary judge took into account all mitigating factors
R v Witherspoon [2003] QCA 58; CA No 366 of 2002, 20
February 2003, applied
COUNSEL: The applicant appeared on his own behalf
M J Copley for the respondent
SOLICITORS: The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the
respondent

THE PRESIDENT: The applicant pleaded guilty to trafficking in a dangerous drug, namely methylamphetamine and cannabis sativa, on 13 June 2003. He was sentenced to five years' imprisonment, suspended after two years, with an operational period of five years. He contends that the sentence was manifestly excessive.

He was 40 at sentence and between 37 and 38 over the 11 month offending period. He had some criminal history for drug offences and offences of dishonesty, but had not before been imprisoned. As Mr Copley for the respondent pointed out today, an aggravating feature was that the applicant was on probation at the time of this offence for other drug offences. To his credit, the applicant pleaded guilty at an early stage and the committal proceedings were conducted fully by way of tendered statements without cross-examination.

The charge of trafficking was based mainly on documents found
in his possession when his home was searched by police on
14 November 2001. Two people who had been supplied drugs by
the applicant, also gave statements to police.

Eleven days later, police located the applicant and arrested him. He was found in possession of other documents, which further indicated his involvement in trafficking and a small amount of cannabis was found on him.

The applicant declined to be formally interviewed. The stole jewellery, some of which he swapped with the applicant for $20, two and a half grams of cannabis sativa and two grams of methylamphetamine and also clear a $140 debt. The youth regularly thereafter swapped property for cannabis or methylamphetamine and sometimes would buy these drugs on credit. He bought drugs from the applicant on 30 to 35 occasions and paid $50 for two and a half points of methylamphetamine and up to $280 for a gram and a half of that drug.

documents included a list of debts…

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 McMahon

Details

AGLC: R v McMahon [2003] QCA 369
Case: [2003] QCA 369
Decision Date: 27/08/2003

CaseChat Overview and Summary

In the matter of R v McMahon, the appellant, who had been convicted of various criminal offences, sought leave to appeal against the sentence imposed by the trial judge. The case was heard in the Court of Appeal, where the appellant argued that the sentence was manifestly excessive and disproportionate to the nature and circumstances of the crimes committed. The respondent, the Crown, opposed the application for leave to appeal, maintaining that the sentence was within the appropriate range and that the trial judge had adequately considered the relevant factors in determining the appropriate punishment.

The central legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive or disproportionate to the nature and circumstances of the crimes. In considering this issue, the court examined the trial judge's sentencing remarks and the principles of sentencing outlined in relevant case law. The court also considered the nature and seriousness of the crimes, the appellant's criminal history, and any mitigating or aggravating factors present in the case.

After careful consideration of the arguments presented by both parties and the applicable legal principles, the court found that the sentence imposed by the trial judge was not manifestly excessive or disproportionate. The court held that the trial judge had adequately considered the relevant factors in determining the appropriate punishment and had exercised their discretion within the bounds of reason. Accordingly, the court refused the appellant's application for leave to appeal against the sentence.

Orders

Orders of the court

Application for leave to appeal against sentence 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 McMahon [2003] QCA 369
PARTIES:	R v McMAHON, Andrew James (applicant)
FILE NO/S:	CA No 199 of 2003 SC No 564 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX	27 August 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	27 August 2003
JUDGES:	McMurdo P, Dutney and Philippides J 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 refused
CATCHWORDS:	CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE –MISCELLANOUS MATTERS – where applicant pleaded guilty to trafficking dangerous drug and sentenced to five years imprisonment suspended after two years, with an operational period of five years – where applicant in process of promising rehabilitation – whether learned primary judge took into account all mitigating factors
R v Witherspoon [2003] QCA 58; CA No 366 of 2002, 20 February 2003, applied
COUNSEL:	The applicant appeared on his own behalf M J Copley for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent