R v Peters - [2012] QCA 325

SUPREME COURT OF QUEENSLAND

CITATION:

R v Peters [2012] QCA 325

PARTIES:

R
v
PETERS, Darryl Robert
(applicant)

FILE NO/S:

CA No 192 of 2012
SC No 489 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

27 November 2012

DELIVERED AT:

Brisbane

HEARING DATE:

19 November 2012

JUDGES:

Margaret McMurdo P, Fraser JA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

APPLICATION FOR LEAVE TO APPEAL REFUSED.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted on plea of guilty of carrying on business of unlawfully trafficking in the dangerous drug cannabis and sentenced to three years and six months imprisonment and parole eligibility fixed at after 12 months – where applicant convicted of one count of possession of cannabis for sale and one count of production of cannabis six years earlier in the District Court in South Australia and sentenced to 14 months imprisonment with a non-parole period of ten months, suspended upon applicant entering into two year good behaviour bond and also fined $3,000 – where applicant had history of cannabis use – where, in psychologist’s opinion, applicant’s judgment was significantly impaired by a depressive disorder, cannabis use, and realistic fears that he would lose his business and become bankrupt – whether sentence manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where applicant contended sentencing judge failed to give sufficient weight to applicant’s psychiatric illness before and at time of commission of offence, his rehabilitation since the commission of offence, and “all other mitigating circumstances” – where applicant argued sentencing judge gave undue weight to applicant’s prior conviction and role in the offending – whether sentencing judge’s discretion miscarried

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where applicant contended sentencing judge failed to give proper and adequate consideration of issue of parity with other offenders involved in operation – where applicant submitted comparable level of involvement with co-offender, Marsh – where applicant sentenced to three years and six months imprisonment and parole eligibility fixed at after 12 months and co-offender, Marsh, sentenced to three years imprisonment suspended after nine months for operational period of three years – where respondent argued difference in sentences justified by differences in circumstances between applicant and co-offender, Marsh – whether sentencing judge erred

Drugs Misuse Act 1986 (Qld), s 5(b)

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, considered
R v Broad & Prior [2010] QCA 53, considered
R v Collins [2009] QCA 387, considered
R v Goodger[2009] QCA 377, cited
R v Guzan [2005] QCA 158, considered
R v…

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 Peters

Details

AGLC: R v Peters [2012] QCA 325
Case: [2012] QCA 325
Decision Date: 27 November 2012

CaseChat Overview and Summary

The applicant, Peters, appealed against his sentence for carrying on a business of unlawfully trafficking in the dangerous drug cannabis, arguing that the sentence was manifestly excessive or inadequate. He had previously been convicted of possession of cannabis for sale and production of cannabis in the District Court in South Australia and had a history of cannabis use. A psychologist's opinion was provided that Peters' judgment was significantly impaired by a depressive disorder, cannabis use, and realistic fears of losing his business and becoming bankrupt. The applicant contended that the sentencing judge failed to give sufficient weight to his psychiatric illness, his rehabilitation since the commission of the offence, and all other mitigating circumstances, and gave undue weight to his prior conviction and role in the offending. The applicant also argued that the sentencing judge failed to properly consider the issue of parity with other offenders involved in the operation.

The court examined the grounds for interference with the sentence, including whether the sentence was manifestly excessive or inadequate, whether the sentencing judge acted on the wrong principle, and whether there was a failure to consider parity between co-offenders. The court found that the applicant's psychiatric illness and history of cannabis use were relevant to the sentence, but did not render it manifestly excessive or inadequate. The court also found that the sentencing judge did not miscarry in their discretion by giving undue weight to the applicant's prior conviction and role in the offending. The court found that the difference in sentences between the applicant and his co-offender was justified by differences in their circumstances.

The court ultimately refused the application for leave to appeal, finding that the sentence was not manifestly excessive or inadequate, and that the sentencing judge did not act on the wrong principle or fail to consider parity between co-offenders. The court found that the applicant's psychiatric illness and history of cannabis use were relevant to the sentence, but did not render it manifestly excessive or inadequate. The court also found that the sentencing judge did not miscarry in their discretion by giving undue weight to the applicant's prior conviction and role in the offending. The court found that the difference in sentences between the applicant and his co-offender was justified by differences in their circumstances.

Orders

Orders of the court

APPLICATION FOR LEAVE TO APPEAL 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 Peters [2012] QCA 325
PARTIES:	R v PETERS, Darryl Robert (applicant)
FILE NO/S:	CA No 192 of 2012 SC No 489 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	27 November 2012
DELIVERED AT:	Brisbane
HEARING DATE:	19 November 2012
JUDGES:	Margaret McMurdo P, Fraser JA and Boddice J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	APPLICATION FOR LEAVE TO APPEAL REFUSED.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted on plea of guilty of carrying on business of unlawfully trafficking in the dangerous drug cannabis and sentenced to three years and six months imprisonment and parole eligibility fixed at after 12 months – where applicant convicted of one count of possession of cannabis for sale and one count of production of cannabis six years earlier in the District Court in South Australia and sentenced to 14 months imprisonment with a non-parole period of ten months, suspended upon applicant entering into two year good behaviour bond and also fined $3,000 – where applicant had history of cannabis use – where, in psychologist’s opinion, applicant’s judgment was significantly impaired by a depressive disorder, cannabis use, and realistic fears that he would lose his business and become bankrupt – whether sentence manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where applicant contended sentencing judge failed to give sufficient weight to applicant’s psychiatric illness before and at time of commission of offence, his rehabilitation since the commission of offence, and “all other mitigating circumstances” – where applicant argued sentencing judge gave undue weight to applicant’s prior conviction and role in the offending – whether sentencing judge’s discretion miscarried CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where applicant contended sentencing judge failed to give proper and adequate consideration of issue of parity with other offenders involved in operation – where applicant submitted comparable level of involvement with co-offender, Marsh – where applicant sentenced to three years and six months imprisonment and parole eligibility fixed at after 12 months and co-offender, Marsh, sentenced to three years imprisonment suspended after nine months for operational period of three years – where respondent argued difference in sentences justified by differences in circumstances between applicant and co-offender, Marsh – whether sentencing judge erred Drugs Misuse Act 1986 (Qld), s 5(b) Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, considered R v Broad & Prior [2010] QCA 53, considered R v Collins [2009] QCA 387, considered R v Goodger[2009] QCA 377, cited R v Guzan [2005] QCA 158, considered R v…