R v Oliver - [2007] QCA 361

SUPREME COURT OF QUEENSLAND

CITATION:

R v Oliver [2007] QCA 361

PARTIES:

R
v
OLIVER, Murray William
(applicant)

FILE NO/S:

CA No 152 of 2007
SC No 135 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2007

JUDGES:

Jerrard and Keane JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application allowed
2. Set aside the sentence
3. Substitute instead a sentence of nine years imprisonment, with a parole eligibility date of 15 June 2010, that is, after three years

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN ALLOWED – GENERALLY – where the applicant pleaded guilty to unlawful possession of the dangerous drug cocaine, in a quantity exceeding 200 grams –where the applicant was sentenced to 11 and a half year’s imprisonment with a parole eligibility date four years and three months from the date of sentence – whether the sentence was manifestly excessive

R v Cooney[2004] QCA 244; CA No 106 of 2004, 21 July 2004, distinguished
R v Donnelly and Corbic[2007] QCA 77; CA No 207 of 2006 and CA No 219 of 2006, 16 March 2007, considered
R v Klasan[2007] QCA 268; CA No 121 of 2007, 17 August 2007, distinguished
R v Le; ex parte Attorney–General [2000] QCA 392; CA No 103 of 2000, 29 September 2000, applied
R v Van Huynh[2003] QCA 371; CA No 140 of 2003, 28 August 2003, distinguished
R v Varitimos, unreported, Lyons J, SC No 336 of 2005, 27 November 2006, considered

COUNSEL:

M E Johnson for the applicant
M J Copley for the respondent

SOLICITORS:

Aboriginal and Torres Strait Islander Legal Service for the applicant
Director of Public Prosecutions (Qld) for the respondent

JERRARD JA: On 28 February 2007 Mr Oliver pleaded guilty to an offence of having unlawfully possessed the dangerous drug cocaine, in a quantity exceeding 200 grams, on or about 24 September 2002 at Brisbane. On 15 June 2007 Mr Oliver was sentenced to 11 and a half year’s imprisonment, with a parole eligibility date fixed as at 15 September 2011, namely four years and three months from the date of sentence. On 5 July 2007 Mr Oliver filed an application for leave to appeal against that sentence, contending that it was manifestly excessive.

Mr Oliver had prior convictions in May 1989 and May 1990, in Victoria, for offences of possession of a drug of dependence, for which he was respectively fined $100 on the first occasion, and $200 on the second. The circumstances of his possession of cocaine in 2002, described by the prosecutor to the sentencing judge, were that in 2002 relevant authorities were…

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 Oliver

Details

AGLC: R v Oliver [2007] QCA 361
Case: [2007] QCA 361
Decision Date: 26 October 2007

CaseChat Overview and Summary

In the case of R v Oliver, the appellant was convicted of unlawfully possessing a dangerous drug, specifically cocaine, in a quantity exceeding 200 grams. The sentence imposed on the appellant was 11 and a half years' imprisonment with parole eligibility set for four years and three months from the date of the sentence. The appellant subsequently lodged an application to appeal against the sentence, arguing that it was manifestly excessive. The appeal was heard by the court, which was tasked with determining whether the original sentence was appropriate given the circumstances of the case.

The primary legal issue before the court was whether the sentence imposed on the appellant was manifestly excessive. This involved a review of the principles governing the determination of sentences in criminal cases, with a particular focus on the proportionality and severity of the sentence in relation to the offence committed. The court had to consider the nature and circumstances of the offence, the appellant's criminal history, and the objectives of sentencing, which include punishment, deterrence, and rehabilitation.

Upon review, the court found that the original sentence was indeed manifestly excessive. The court took into account the statutory guidelines and precedents in assessing the appropriate sentence for the offence of unlawful possession of a dangerous drug in the specified quantity. After a detailed analysis of the relevant factors, the court concluded that a lesser sentence was warranted. Consequently, the appeal was allowed, the original sentence was set aside, and a new sentence of nine years' imprisonment was imposed, with parole eligibility set for 15 June 2010, three years from the date of the new sentence.

Orders

Orders of the court

1. Application allowed

2. Set aside the sentence

3. Substitute instead a sentence of nine years imprisonment, with a parole eligibility date of 15 June 2010, that is, after three years

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.

CITATION:	R v Oliver [2007] QCA 361
PARTIES:	R v OLIVER, Murray William (applicant)
FILE NO/S:	CA No 152 of 2007 SC No 135 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	26 October 2007
DELIVERED AT:	Brisbane
HEARING DATE:	17 October 2007
JUDGES:	Jerrard and Keane JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application allowed 2. Set aside the sentence 3. Substitute instead a sentence of nine years imprisonment, with a parole eligibility date of 15 June 2010, that is, after three years
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN ALLOWED – GENERALLY – where the applicant pleaded guilty to unlawful possession of the dangerous drug cocaine, in a quantity exceeding 200 grams –where the applicant was sentenced to 11 and a half year’s imprisonment with a parole eligibility date four years and three months from the date of sentence – whether the sentence was manifestly excessive R v Cooney[2004] QCA 244; CA No 106 of 2004, 21 July 2004, distinguished R v Donnelly and Corbic[2007] QCA 77; CA No 207 of 2006 and CA No 219 of 2006, 16 March 2007, considered R v Klasan[2007] QCA 268; CA No 121 of 2007, 17 August 2007, distinguished R v Le; ex parte Attorney–General [2000] QCA 392; CA No 103 of 2000, 29 September 2000, applied R v Van Huynh[2003] QCA 371; CA No 140 of 2003, 28 August 2003, distinguished R v Varitimos, unreported, Lyons J, SC No 336 of 2005, 27 November 2006, considered
COUNSEL:	M E Johnson for the applicant M J Copley for the respondent
SOLICITORS:	Aboriginal and Torres Strait Islander Legal Service for the applicant Director of Public Prosecutions (Qld) for the respondent