R v Rose - [2020] QCA 234

SUPREME COURT OF QUEENSLAND

CITATION:

R v Rose [2020] QCA 234

PARTIES:

R
v
ROSE, Darren Rodney
(applicant)

FILE NO/S:

CA No 81 of 2020
SC No 1155 of 2019
SC No 283 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 13 March 2020 (Dalton J)

DELIVERED ON:

27 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

26 August 2020

JUDGES:

Sofronoff P and Fraser and McMurdo JJA

ORDER:

Leave to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced on his own pleas of guilty to 11 counts of drug-related offences – where the applicant also pleaded guilty to certain summary charges – where the learned sentencing judge sentenced the applicant to a sentence that was, effectively, one of four and a half years’ imprisonment with parole eligibility after serving one third of his sentence – where the applicant submits that the sentence imposed was manifestly excessive – where the applicant does not submit that the learned sentencing judge erred in any way – where the applicant seeks to tender further evidence to show that he has been unable to undergo physiotherapy in prison and that his mental health has deteriorated due to the restrictions imposed upon prisoners as a result of COVID-19 – whether the sentence was manifestly excessive

COUNSEL:

G M McGuire for the applicant
M J Wilson for the respondent

SOLICITORS:

Phillips Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: The applicant pleaded guilty to six counts of supplying a dangerous drug, one count of possessing a thing used in connection with the supply of a dangerous drug, possessing a dangerous drug, namely methylamphetamine, in a quantity greater than 2 grams, possessing dangerous drugs, namely cannabis and methylenedioxyamphetamine, possessing 4-Hydroxybutanoic acid and contravening an order to access information stored electronically. He also pleaded guilty to certain summary charges which it is unnecessary to mention. Dalton J sentenced the applicant to a sentence that was, effectively, one of four and a half years’ imprisonment with parole eligibility after serving one third of his sentence. The applicant seeks leave to appeal his sentence on the ground that it was manifestly excessive.
On the morning of 16 March 2018 the applicant was sentenced in the Magistrates Court on an unrelated charge for possession of dangerous drugs. Later that day he received a telephone call from somebody asking if he was “still in business”. He was. He then supplied a customer with 7 grams of cannabis. This was count 1 on the indictment. Over the next month he made five further supplies of drugs. These were counts 2, 3, 4, 5 and 7. When police later searched his home, they found 22.55 grams of pure methylamphetamine, which was count 10, 12 grams of cannabis, which was count 11, 103.172 grams of GBL,…

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 Rose

Details

AGLC: R v Rose [2020] QCA 234
Case: [2020] QCA 234
Decision Date: 27 October 2020

CaseChat Overview and Summary

In the matter of R v Rose, the appellant was convicted on his own pleas of guilty to 11 counts of drug-related offences and pleaded guilty to certain summary charges. The sentencing judge imposed a sentence of four and a half years’ imprisonment with parole eligibility after the applicant had served one third of his sentence. The applicant now seeks leave to appeal against the sentence imposed, submitting that it was manifestly excessive.

The legal issue before the court was whether the sentence imposed by the learned sentencing judge was manifestly excessive. The applicant did not submit that the learned sentencing judge erred in any way in imposing the sentence, but rather that the sentence was manifestly excessive in the circumstances of the case. The applicant sought to tender further evidence to show that he had been unable to undergo physiotherapy in prison and that his mental health had deteriorated due to the restrictions imposed upon prisoners as a result of COVID-19.

The court noted that the applicant did not submit that the learned sentencing judge erred in any way in imposing the sentence, and that the applicant was seeking to rely on evidence that was not before the learned sentencing judge at the time of sentencing. The court found that the sentence imposed by the learned sentencing judge was not manifestly excessive and that the applicant had failed to demonstrate that the sentence was inappropriate in the circumstances of the case. Accordingly, the court refused the applicant’s application for leave to appeal against the sentence imposed.

Orders

Orders of the court

Leave to appeal is 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 Rose [2020] QCA 234
PARTIES:	R v ROSE, Darren Rodney (applicant)
FILE NO/S:	CA No 81 of 2020 SC No 1155 of 2019 SC No 283 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 13 March 2020 (Dalton J)
DELIVERED ON:	27 October 2020
DELIVERED AT:	Brisbane
HEARING DATE:	26 August 2020
JUDGES:	Sofronoff P and Fraser and McMurdo JJA
ORDER:	Leave to appeal is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced on his own pleas of guilty to 11 counts of drug-related offences – where the applicant also pleaded guilty to certain summary charges – where the learned sentencing judge sentenced the applicant to a sentence that was, effectively, one of four and a half years’ imprisonment with parole eligibility after serving one third of his sentence – where the applicant submits that the sentence imposed was manifestly excessive – where the applicant does not submit that the learned sentencing judge erred in any way – where the applicant seeks to tender further evidence to show that he has been unable to undergo physiotherapy in prison and that his mental health has deteriorated due to the restrictions imposed upon prisoners as a result of COVID-19 – whether the sentence was manifestly excessive
COUNSEL:	G M McGuire for the applicant M J Wilson for the respondent
SOLICITORS:	Phillips Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent