R v Newcombe and Middleton

Case [1999] QCA 408
IN THE COURT OF APPEAL [1999] QCA 408
SUPREME COURT OF QUEENSLAND

CA No 101 of 1999

CA No 143 of 1999

Brisbane

[R v Newcombe & Middleton ]

THE QUEEN

v

BRETT CLAYTON NEWCOMBE

(Applicant) Appellant

and
MARK ANTHONY MIDDLETON

(Applicant)

McMurdo P
Pincus JA

Thomas JA

Judgment delivered 28 September 1999

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

(1) IN RESPECT OF THE APPLICANT/APPELLANT NEWCOMBE, APPLICATION FOR LEAVE TO APPEAL GRANTED. APPEAL AGAINST SENTENCE ALLOWED. SENTENCE BELOW VARIED BY DELETING THE TERM OF IMPRISONMENT OF 7 YEARS AND INSTEAD ORDERING THAT NEWCOMBE SERVE A PERIOD OF IMPRISONMENT OF FIVE AND A HALF YEARS.

(2) IN RESPECT OF THE APPLICANT MIDDLETON, APPLICATION FOR
LEAVE TO APPEAL AGAINST SENTENCE REFUSED.
(3) SENTENCES BELOW ARE OTHERWISE CONFIRMED.

CATCHWORDS: CRIMINAL LAW - APPEAL & NEW TRIAL - APPEAL

AGAINST SENTENCE - guilty pleas to armed robbery in company - highly organised robbery of pharmaceutical company for raw material drugs for illegal manufacturing - whether sentences manifestly excessive - whether judge erred in making declaration of serious violent offence - whether judge erred in finding both applicants equally culpable - whether judge erred in sentencing on basis that applicants knew gun was loaded

Penalties and Sentences Act 1992 s161B(3)

R v Morrison [1999] 1 QdR 397; [1998] QCA 162, applied
R v Bojovic CA No 4 of 1999, 8 June 1999; [1999] QCA 206,
R v Collins CA No 238 of 1998, 18 September 1998; [1998]

QCA 280, approved

Counsel:  Mr C E Hampson QC with him Mr A J Kimmins for the
applicant/appellant Newcombe
Mr B Devereaux for the applicant Middleton
Mr M Byrne QC for the respondent
Solicitors:  Ryan & Bosscher for the applicant/appellant Newcombe
Legal Aid Queensland for the applicant Middleton
Director of Public Prosecutions (Queensland) for the
respondent
Hearing Date:  8 July 1999

  1. McMURDO P: The applicants pleaded guilty on 8 March 1999 in the District Court at Brisbane, together with Robert Douglas Kidd, to one count of armed robbery in company. On 30 March 1999, all three were sentenced to 7 years imprisonment in respect of that offence, and each was declared to be a serious violent offender. Kidd had also pleaded guilty to one count of unlawful striking with a projectile with intent to prevent lawful arrest and was sentenced to a further 11 years concurrent imprisonment on that count.

  2. Both applicants claim the sentence was manifestly excessive in that the learned sentencing judge should not have declared them to be convicted of a serious violent offence under s 161B(3) of the Penalties and Sentences Act 1992. The applicant Newcombe also argues that the learned sentencing judge erred in finding beyond any doubt that Newcombe knew of a plan involving a firearm prior to the actual commission of the offence.

    The Facts

  3. The Biotech chemical factory at Rocklea produced a range of pharmaceutical products, including cough syrups, elixirs and drugs for relief of cancer sufferers.…

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AGLC
R v Newcombe and Middleton [1999] QCA 408
Case
[1999] QCA 408
Decision Date

CaseChat Overview and Summary

The applicants in this case, Newcombe and Middleton, appealed against their sentences, arguing that they were manifestly excessive. They contested the sentencing judge's declaration that they were convicted of a serious violent offence under section 161B(3) of the Penalties and Sentences Act 1992, and Newcombe further argued that the judge erred in finding beyond any reasonable doubt that he knew of a plan involving a firearm prior to the offence. The court was tasked with determining the appropriateness of the sentence and whether the sentencing judge correctly interpreted the facts in relation to the applicants' knowledge of the firearm.

The court examined the nature and circumstances of the offence, which involved the attempted theft of pseudoephedrine from the Biotech chemical factory. The factory produced pharmaceutical products and used pseudoephedrine in its processes. The applicants were part of a group that was planning the theft, and they were closely monitored by police. The court considered the seriousness of the planned offence, the applicants' roles, and the potential impact of their actions. The court also assessed the sentencing judge's interpretation of the evidence regarding the applicants' knowledge of the firearm.

After reviewing the evidence and arguments, the court determined that the sentencing judge did not err in declaring the applicants guilty of a serious violent offence. The court found that the planned theft was indeed serious, and the applicants' roles in the offence warranted a severe sentence. The court also upheld the sentencing judge's finding that Newcombe knew of the plan involving a firearm. The court concluded that the sentence was not manifestly excessive and was appropriate given the circumstances of the case.

The final orders of the court were that the applicants' appeals against their sentences were dismissed. The original sentences imposed by the sentencing judge were upheld, and the applicants remained convicted of the serious violent offence.

Orders

Orders of the court

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Background

Background to the litigation

Both applicants claim the sentence was manifestly excessive in that the learned sentencing judge should not have declared them to be convicted of a serious violent offence under s 161B(3) of the Penalties and Sentences Act 1992. The applicant Newcombe also argues that the learned sentencing judge erred in finding beyond any doubt that Newcombe knew of a plan involving a firearm prior to the actual commission of the offence. The Facts The Biotech chemical factory at Rocklea produced a range of pharmaceutical products, including cough syrups, elixirs and drugs for relief of cancer sufferers. Biotech was supplied with drugs including pseudoephedrine, which they processed, bottled, labelled and supplied to pharmaceutical wholesalers who in turn supplied pharmacies. Pseudoephedrine is used in the production of cough syrups and elixirs and is a significant ingredient in the illegal manufacture of methyl amphetamine. The prosecutor submitted that Kidd was a known associate of Sydney underworld criminal figures, although this was denied by Kidd's counsel. Operation Columbo was formed following the Wood Royal Commission in New South Wales by Queensland and New South Wales police and NCA detectives to investigate criminal activities and particularly Kidd and Ian Smith, a Queensland prison officer who has since absconded on bail. Surveillance in November 1997 uncovered meetings between Kidd, Smith, the appellant Middleton and another person who may have been Newcombe. Newcombe denied any involvement at this time. Intercepted telephone conversations with Smith, although in code, suggested that this offence was being planned from late November. The name "David Craig" (the name of the company taken over by Biotech in 1995) and Biotech's address were mentioned in intercepted phone conversations between Smith and Middleton. On 9 December 1997, Middleton phoned Smith to arrange for a deposit of $4,000 to be made to Smith's account; Friday at closing time, just after 5 was mentioned as being a "top time"; Middleton was to arrive on Thursday or Friday morning with a friend (Newcombe) to stay at Smith's house. These participants were closely monitored by police. On 11 December Smith purchased a panel van advertised in the Trading Post using a false name and licence number to transfer the vehicle; it was to be used to transport drugs obtained from the offence. Middleton and Newcombe arrived in Brisbane on Thursday evening, 11 December and travelled to Smith's house at Karalee. The three were followed by police when they drove to Biotech at about midnight; they were engaged in conversation there for about three-quarters of an hour. The next day, the three purchased plastic garbage bins, plastic rubbish bags, gloves and a metal sieve. They were followed to the Breakfast Creek Hotel where they met up with Kidd, who had just flown in from Sydney. They left the Hotel shortly after midday and at 3.33 pm they all left Smith's home in two vehicles, the recently purchased white Falcon panel van and Smith's green Barina. Kidd was holding a blue bag in which, the prosecutor submitted, was Smith's .357 Smith & Wesson prison service revolver. Smith's green Barina was parked at the Highway Hotel at Rocklea and all four drove in the panel van to Biotech, arriving at 4.03 pm. Meanwhile, 17 police officers assembled in various vehicles in and around the Biotech laboratory. The panel van was driven past Biotech about four times before stopping nearby. The factory workers finished at 3.30 pm and the office workers at 4.30 pm. At 4.31 pm, the applicants parked the panel van outside the main entrance of Biotech. Smith remained in the driver's seat whilst Kidd, Middleton and Newcombe entered the building, where there was no security, dressed in dark clothing and wearing balaclavas and gloves. Kidd had the gun and Middleton was holding bolt cutters.

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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