R v Pevitt - [2016] QCA 49

SUPREME COURT OF QUEENSLAND

CITATION:

R v Pevitt [2016] QCA 49

PARTIES:

R
v
PEVITT, Andrea Leslie
(applicant)

FILE NO/S:

CA No 66 of 2015
SC No 478 of 2013
SC No 250 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 7 April 2015

DELIVERED ON:

4 March 2016

DELIVERED AT:

Brisbane

HEARING DATE:

1 December 2015

JUDGES:

Gotterson and Philippides and Philip McMurdo JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal against these sentences be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced upon her pleas of guilty to concurrent terms of imprisonment of five years for one count of trafficking in heroin and eighteen months for each of two counts of supplying heroin – where the applicant was further sentenced to concurrent terms of six months and eighteen months imprisonment on her pleas of guilty to five counts of dishonesty offences – where the sentences for the dishonesty offences were to be served cumulatively upon the sentences for the drug offences – where the applicant contends the sentencing judge erred in applying the parity principle because although he accepted the applicant was a street-level dealer, he failed to consider the sentences imposed upon two other street-level dealers supplied by the same supplier – where the applicant further contends the sentencing judge failed to employ the parity principle by not considering if the totality of the sentences imposed corresponded with the overall criminality of the applicant’s offending – whether the sentences are manifestly excessive

R v Cottle-Pilides[2006] QCA 72, distinguished
R v Donald[2000] QCA 399, considered
R v Jobsz[2013] QCA 5, distinguished

COUNSEL:

J Crawford for the applicant (pro bono)
D C Boyle for the respondent

SOLICITORS:

No appearance for the applicant
Director of Public Prosecutions (Queensland) for the respondent

GOTTERSON JA: I agree with the order proposed by Philip McMurdo JA and with the reasons given by his Honour.
PHILIPPIDES JA: I agree that the application for leave to appeal against the sentences imposed on the applicant should be refused for the reasons stated by Philip McMurdo JA.
PHILIP McMURDO JA: On 7 April 2015, the applicant was sentenced to various terms of imprisonment upon two indictments. She had pleaded guilty to each of the offences. She received in total a period of imprisonment of six and a half years with a parole eligibility date after approximately 30 months. She applies for leave to appeal against her sentences on the grounds that they were manifestly excessive.
One of the indictments contained three counts: one of trafficking in heroin and other drugs (between 16 April 2012 and 31 May 2012) and two of supplying heroin on 29 May 2012. She was sentenced to five years’ imprisonment for the…

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 Pevitt

Details

AGLC: R v Pevitt [2016] QCA 49
Case: [2016] QCA 49
Decision Date: 4 March 2016

CaseChat Overview and Summary

The matter in R v Pevitt involved the applicant, who had pleaded guilty to various drug trafficking and supply offences, as well as dishonesty offences. The applicant contested the severity of her sentence, which consisted of concurrent terms for drug-related offences and cumulative terms for the dishonesty offences. She sought to appeal against the sentences on the grounds that they were manifestly excessive. The application for leave to appeal was considered by the court, which needed to determine whether the applicant had established a valid ground for interference with the original sentencing decision.

The central legal issues before the court were whether the sentencing judge erred in applying the parity principle and whether the totality of the sentences imposed corresponded with the overall criminality of the applicant's offending. The applicant argued that the sentencing judge did not consider the sentences imposed on other street-level dealers who were supplied by the same person and failed to ensure that the cumulative sentences reflected the overall criminality of her offending. The court had to assess whether the sentences were manifestly excessive or inadequate in light of these contentions.

In delivering its decision, the court held that the applicant had not demonstrated that the sentences were manifestly excessive. The court found that the sentencing judge had properly exercised his discretion and had considered the relevant factors in arriving at the sentences. The court determined that the sentencing judge had appropriately applied the parity principle and had not erred in considering the sentences imposed on other dealers. Furthermore, the court concluded that the cumulative sentences did not exceed what was warranted by the overall criminality of the applicant's offending. Consequently, the court refused the application for leave to appeal against the sentences.

The court's final order was that the application for leave to appeal against the sentences be refused. The court found no basis to interfere with the original sentencing decision, as the sentences were not manifestly excessive or inadequate.

Orders

Orders of the court

The application for leave to appeal against these sentences be 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 Pevitt [2016] QCA 49
PARTIES:	R v PEVITT, Andrea Leslie (applicant)
FILE NO/S:	CA No 66 of 2015 SC No 478 of 2013 SC No 250 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 7 April 2015
DELIVERED ON:	4 March 2016
DELIVERED AT:	Brisbane
HEARING DATE:	1 December 2015
JUDGES:	Gotterson and Philippides and Philip McMurdo JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for leave to appeal against these sentences be refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced upon her pleas of guilty to concurrent terms of imprisonment of five years for one count of trafficking in heroin and eighteen months for each of two counts of supplying heroin – where the applicant was further sentenced to concurrent terms of six months and eighteen months imprisonment on her pleas of guilty to five counts of dishonesty offences – where the sentences for the dishonesty offences were to be served cumulatively upon the sentences for the drug offences – where the applicant contends the sentencing judge erred in applying the parity principle because although he accepted the applicant was a street-level dealer, he failed to consider the sentences imposed upon two other street-level dealers supplied by the same supplier – where the applicant further contends the sentencing judge failed to employ the parity principle by not considering if the totality of the sentences imposed corresponded with the overall criminality of the applicant’s offending – whether the sentences are manifestly excessive R v Cottle-Pilides[2006] QCA 72, distinguished R v Donald[2000] QCA 399, considered R v Jobsz[2013] QCA 5, distinguished
COUNSEL:	J Crawford for the applicant (pro bono) D C Boyle for the respondent
SOLICITORS:	No appearance for the applicant Director of Public Prosecutions (Queensland) for the respondent