R v Power

[2013] QCA 351

SUPREME COURT OF QUEENSLAND

CITATION:

R v Power [2013] QCA  351

PARTIES:

R
v
POWER, Kevin David
(applicant)

FILE NO/S:

CA No 185 of 2013
SC No 113 of 2013
SC No 345 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 November 2013

DELIVERED AT:

Brisbane

HEARING DATE:

20 November 2013

JUDGES:

Gotterson and Morrison JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant seeks leave to appeal against sentence – where the applicant contends that the head sentence of four years was manifestly excessive – where it was not suggested that the learned sentencing judge had not taken all the relevant matters into account when passing sentence, or that the sentencing discretion had otherwise miscarried – whether the application should be granted or refused

R v Ban[1992] QCA 98, distinguished
R v Jenkins[1999] QCA 447, distinguished

COUNSEL:

J Hunter QC for the applicant
P J McCarthy for the respondent

SOLICITORS:

Buckland Allen Criminal Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. GOTTERSON JA:  I agree with the order proposed by Daubney J and with the reasons given by his Honour.

1. MORRISON JA:  I have read the reasons of Daubney J and agree with them, and the order his Honour proposes.

1. DAUBNEY J:  On 8 July 2013 the applicant was convicted, on his own pleas of guilty, of the following counts, in respect of which the following respective penalties were imposed:

-     Count 1 – possessing a dangerous drug (cocaine) in a quantity exceeding two grams – four years’ imprisonment.

-     Count 2 – possessing dangerous drugs (methylamphetamine, amphetamine and N, N-dimethylamphetamine) – one year imprisonment.

-     Count 3 – possessing a dangerous drug (cannabis) – six months’ imprisonment.

-      Count 4 – possessing things used in connection with possessing a dangerous drug – three months’ imprisonment.

1. The applicant also pleaded guilty to a number of summary offences, in respect of which he was convicted but no further penalty was imposed.  The learned sentencing judge ordered a parole eligibility date of 7 November 2014 (i.e. after 16 months).

1. The applicant now seeks leave to appeal against sentence, contending only that the head sentence of four years was manifestly excessive.

1. The circumstances of the offending were that on Wednesday, 31 August 2011, police from Cunnamulla intercepted a bus with six occupants, including the applicant.  Permission to search the bus was refused, but one of the occupants was seen to walk some distance away and surreptitiously dispose of an item, which was identified as a glass pipe.  Police then searched the bus and the occupants, including the applicant.

1. Police observed a plastic bag containing white powder hanging from the applicant’s underwear.…