R v Ross; R v Turnbull - [2004] QCA 357

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ross; R v Turnbull [2004] QCA 357

PARTIES:

R
v
ROSS, Anthony James
(applicant)

R
v
TURNBULL, Gregor Derek
(applicant)

FILE NO/S:

CA No 291 of 2004
CA No 292 of 2004
SC No 330 of 2004
SC No 331 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

1 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

21 September 2004

JUDGES:

McPherson JA, Cullinane and Jones JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Applications for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW — PRACTICE AND PROCEDURE — SENTENCING — whether sentence is manifestly excessive — whether trial judge erred in concluding drug production was for commercial use — where applicants’ claim drugs were for personal use

Brown v Dunn (1893) 6 R. 67, cited
R v Neale [2004] QCA 128; CA No 70 of 2004, 23 April 2004, cited

R v Ball [1999] QCA 427; CA No 250 of 1999, 8 October 1999, cited

COUNSEL:

A J Kimmins for the appellants
S G Bain for the respondent

SOLICITORS:

McMillan Lawyers for the appellants
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: I have read and agree with the reasons of Cullinane J for dismissing the applications. I agree that it was open to the learned sentencing judge to infer that production of the offending plants had a commercial purpose. His Honour plainly did not accept the evidence to the contrary of either of the applicants given at the sentence hearing. He was in my opinion correct in reaching the conclusion that he did. Given that predicate, the sentences imposed were not in themselves outside the limits of a proper sentencing discretion as suggested by other decisions in similar circumstances.
The applications for leave to appeal against the sentences imposed should be dismissed.
CULLINANE J: The two applicants who were sentenced together seek leave to appeal against sentences imposed on each of them in the Supreme Court on 5 August 2004.
The applicant Ross pleaded guilty to one count of production of cannabis, and one of possessing various items of equipment for use in connection with the production of cannabis. The sentence, the subject of the application for leave, is that imposed on the count of production namely 18 months imprisonment suspended after six months with an operational period of two years.
Turnbull pleaded guilty to a count of production of cannabis, a count of possessing items used in the commission of that offence and a count of possession of cannabis. He received the same sentence as Ross received in respect of the production count and seeks leave to appeal against this.
In each case the items the subject of the counts of possession of things used in connection with the production count were the components of hydroponic systems used in each case for the production of 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.

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Details

Case: [2004] QCA 357
Decision Date: 1 October 2004

CaseChat Overview and Summary

The applicants, Ross and Turnbull, were convicted of drug-related offences and subsequently sentenced by a court. They sought leave to appeal against their sentences, arguing that they were manifestly excessive and that the trial judge had erred in determining that the drugs were intended for commercial use rather than personal consumption. The case was heard by the court of appeal.

The central legal issues addressed by the court were whether the sentences imposed were manifestly excessive and whether the trial judge had erred in concluding that the drug production was for commercial purposes. The applicants contended that their sentences were unduly harsh and that the trial judge should have accepted their claim that the drugs were for personal use.

The court found that the applicants' sentences were not manifestly excessive. The court acknowledged the severity of the drug-related offences but determined that the sentences reflected the gravity of the crimes. Additionally, the court held that the trial judge did not err in concluding that the drug production was for commercial purposes. The court found the trial judge's assessment of the evidence to be reasonable and supported by the facts presented. Consequently, the applications for leave to appeal against the sentences were dismissed.

Orders

Orders of the court

Applications for leave to appeal against sentence dismissed

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 Ross; R v Turnbull [2004] QCA 357
PARTIES:	R v ROSS, Anthony James (applicant) R v TURNBULL, Gregor Derek (applicant)
FILE NO/S:	CA No 291 of 2004 CA No 292 of 2004 SC No 330 of 2004 SC No 331 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	1 October 2004
DELIVERED AT:	Brisbane
HEARING DATE:	21 September 2004
JUDGES:	McPherson JA, Cullinane and Jones JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Applications for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW — PRACTICE AND PROCEDURE — SENTENCING — whether sentence is manifestly excessive — whether trial judge erred in concluding drug production was for commercial use — where applicants’ claim drugs were for personal use Brown v Dunn (1893) 6 R. 67, cited R v Neale [2004] QCA 128; CA No 70 of 2004, 23 April 2004, cited R v Ball [1999] QCA 427; CA No 250 of 1999, 8 October 1999, cited
COUNSEL:	A J Kimmins for the appellants S G Bain for the respondent
SOLICITORS:	McMillan Lawyers for the appellants Director of Public Prosecutions (Queensland) for the respondent