R v Salter - [2010] QCA 284

SUPREME COURT OF QUEENSLAND

CITATION:

R v Salter [2010] QCA 284

PARTIES:

R
v
SALTER, Tony
(applicant)

FILE NO/S:

CA No 103 of 2010
SC No 267 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 October 2010

DELIVERED AT:

Brisbane

HEARING DATE:

7 October 2010

JUDGES:

McMurdo P, White JA and Jones 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 applicant pleaded guilty on ex-officio indictment to one count of trafficking in cannabis sativa and one count of possession of cannabis sativa – where the applicant made extensive admissions to police – where applicant sentenced to nine years imprisonment with no recommendation for parole eligibility for the trafficking count – whether the sentencing judge had adequate regard to the mitigating factors of the plea of guilty and admissions against interest when declining to set an earlier recommendation for parole eligibility – whether sentence manifestly excessive

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, applied
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
R v Brienza [2010] QCA 15, considered
R v Broad & Prior[2010] QCA 53, considered
R v Brown [2004] QCA 229, considered
R v Grkovic [1989] CCA 038, considered
R v Parsons & Sanders [1999] QCA 402, considered
R v Wallace [2008] QCA 135, considered

COUNSEL:

H C Fong for the applicant
B J Merrin for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

[1] McMURDO P: The application for leave to appeal against sentence should be refused for the reasons given by White JA.

[2] WHITE JA: On 23 April 2010 the applicant pleaded guilty on ex-officio indictment that between 1 January 2004 and 23 April 2009 he carried on the business of unlawfully trafficking in cannabis sativa and that he had possession of cannabis on 22 April 2009. Sentence proceeded on a schedule of agreed facts. The applicant was sentenced to imprisonment for nine years with no recommendation for parole eligibility outside the Corrective Services Act regime on the trafficking charge and convicted and not further punished on the possession charge.

[3] The applicant’s co-offender, Richard James Eeles, was sentenced to two and a half years imprisonment suspended after six months for an operational period of five years. There is no suggestion that his lesser sentence gives rise to any parity issue since Eeles was sentenced on the basis of one act of couriering over 11 kilograms of cannabis, although jointly charged with the applicant on the trafficking count. The applicant was aged 60 when charged and Eeles aged 69 years.

[4] On 22 April 2009 at about noon police executed…

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 Salter

Details

AGLC: R v Salter [2010] QCA 284
Case: [2010] QCA 284
Decision Date: 22 October 2010

CaseChat Overview and Summary

In the case of R v Salter, the appellant faced a conviction following a plea of guilty to charges of trafficking in and possession of cannabis sativa. The appellant's sentence, which amounted to nine years of imprisonment with no recommendation for parole eligibility for the trafficking count, was the subject of appeal. The appellant argued that the sentence was manifestly excessive, particularly given the mitigating factors of his plea of guilty and the admissions he made to the police.

The primary legal issue before the court was whether the sentencing judge had appropriately considered the mitigating factors when determining the sentence. Specifically, the court needed to examine if the sentence was excessive or inadequate in light of the plea of guilty and admissions against the appellant's interest. The appellant contended that these factors warranted a lesser sentence, including an earlier recommendation for parole eligibility.

The court meticulously reviewed the sentencing process and the mitigating factors presented. It concluded that the sentencing judge had indeed taken into account the appellant's guilty plea and admissions when crafting the sentence. The court found no basis to interfere with the sentence, determining that it was not manifestly excessive or inadequate. As such, the appeal against the sentence was dismissed, and the application was refused.

Orders

Orders of the court

The application 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 Salter [2010] QCA 284
PARTIES:	R v SALTER, Tony (applicant)
FILE NO/S:	CA No 103 of 2010 SC No 267 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	22 October 2010
DELIVERED AT:	Brisbane
HEARING DATE:	7 October 2010
JUDGES:	McMurdo P, White JA and Jones 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 applicant pleaded guilty on ex-officio indictment to one count of trafficking in cannabis sativa and one count of possession of cannabis sativa – where the applicant made extensive admissions to police – where applicant sentenced to nine years imprisonment with no recommendation for parole eligibility for the trafficking count – whether the sentencing judge had adequate regard to the mitigating factors of the plea of guilty and admissions against interest when declining to set an earlier recommendation for parole eligibility – whether sentence manifestly excessive AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, applied House v The King (1936) 55 CLR 499; [1936] HCA 40, cited R v Brienza [2010] QCA 15, considered R v Broad & Prior[2010] QCA 53, considered R v Brown [2004] QCA 229, considered R v Grkovic [1989] CCA 038, considered R v Parsons & Sanders [1999] QCA 402, considered R v Wallace [2008] QCA 135, considered
COUNSEL:	H C Fong for the applicant B J Merrin for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent