R v McVea - [2004] QCA 380

SUPREME COURT OF QUEENSLAND

CITATION:

R v McVea [2004] QCA 380

PARTIES:

R
v
McVEA, Peter Andrew
(applicant)

FILE NO/S:

CA No 145 of 2004
SC No 337 of 2003

SC No 542 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

19 August 2004

JUDGES:

McMurdo P and Helman and Dutney JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for leave to appeal against sentence is granted.

2. Appeal allowed to the extent of setting aside the sentence imposed on count 1 and instead substituting a sentence of imprisonment for one year suspended after six months with an operational period of two years.

CATCHWORDS:

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where the applicant convicted on pleas of guilty of three drug offences and two summary matters – whether head sentence of imprisonment for four years suspended after twelve months with an operational period of four years excessive

Drugs Misuse Act 1986 (Qld), s 10

R v Hall [2002] QCA 438; CA No 253 of 2002, 17 October 2002, distinguished
R v Clapham [2003] QCA 418; CA No 208 of 2003, 23 September 2003, distinguished

COUNSEL:

A W Moynihan for the applicant
M R Byrne for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

P: McMURDO I agree with Helman J that, for the reasons he gives, the application for leave to appeal should be granted and the appeal allowed to the extent of setting aside the sentence imposed on count 1 (an offence against s 10(1)(a) Drugs Misuse Act 1986 (Qld)) and instead substituting a sentence of imprisonment for one year suspended after six months with an operational period of two years.

HELMAN J: On 14 May 2004 the applicant pleaded guilty in the Supreme Court at Brisbane to three charges of offences under the Drugs Misuse Act 1986 committed at Brisbane on 29 March 2002: having in his possession things (numerous items of glassware, chemicals, a portable stove, filter paper and stands, mobile phones, scales, and a quantity of Sudafed) for use in connexion with the commission of the crime of producing the dangerous drug methylamphetamine, unlawfully possessing the dangerous drug cannabis sativa, and unlawfully possessing the dangerous drug methylamphetamine. The first charge was brought under s 10(1)(a) of the Drugs Misuse Act and the other two charges under s 9 of that Act. Those charges appeared on an indictment that had been presented on 26 August 2003 and in which two other people, Danielle Charleton and George Postic, had been charged with offences under the Drugs Misuse Act. In addition to the three charges on the indictment there were two further charges, of summary offences allegedly committed on 29 March 2002 at…

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 McVea

Details

AGLC: R v McVea [2004] QCA 380
Case: [2004] QCA 380
Decision Date: 15 October 2004

CaseChat Overview and Summary

The respondent, McVea, was convicted on pleas of guilty of three drug offences and two summary matters. He was sentenced to imprisonment for four years, suspended after twelve months, with an operational period of four years. McVea applied for leave to appeal against the sentence, arguing that the head sentence was excessive given the circumstances of the offender. The court was required to determine whether the sentence was appropriate and whether the sentencing judge had taken into account the relevant factors in determining the sentence.

The court found that the sentencing judge had failed to adequately consider the offender's personal circumstances, including his age, employment history, and family responsibilities. The court also found that the head sentence of imprisonment for four years suspended after twelve months was excessive, given the nature and circumstances of the offences. The court noted that the offender had pleaded guilty and had no prior criminal history, and that a custodial sentence was not necessary to achieve the aims of punishment, deterrence, and rehabilitation. The court held that the sentence imposed was manifestly excessive and unjust, and that it was appropriate to substitute a less severe sentence.

The court allowed the appeal and set aside the sentence imposed on count 1. In its place, the court substituted a sentence of imprisonment for one year suspended after six months with an operational period of two years. The appeal was allowed to the extent of setting aside the original sentence and substituting a less severe sentence. The court also granted leave to appeal against the sentence.

Orders

Orders of the court

1. Application for leave to appeal against sentence is granted.

2. Appeal allowed to the extent of setting aside the sentence imposed on count 1 and instead substituting a sentence of imprisonment for one year suspended after six months with an operational period of two years.

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 McVea [2004] QCA 380
PARTIES:	R v McVEA, Peter Andrew (applicant)
FILE NO/S:	CA No 145 of 2004 SC No 337 of 2003 SC No 542 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	15 October 2004
DELIVERED AT:	Brisbane
HEARING DATE:	19 August 2004
JUDGES:	McMurdo P and Helman and Dutney JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence is granted. 2. Appeal allowed to the extent of setting aside the sentence imposed on count 1 and instead substituting a sentence of imprisonment for one year suspended after six months with an operational period of two years.
CATCHWORDS:	CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where the applicant convicted on pleas of guilty of three drug offences and two summary matters – whether head sentence of imprisonment for four years suspended after twelve months with an operational period of four years excessive Drugs Misuse Act 1986 (Qld), s 10 R v Hall [2002] QCA 438; CA No 253 of 2002, 17 October 2002, distinguished R v Clapham [2003] QCA 418; CA No 208 of 2003, 23 September 2003, distinguished
COUNSEL:	A W Moynihan for the applicant M R Byrne for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent