R v SBZ - [2013] QCA 176

SUPREME COURT OF QUEENSLAND

CITATION:

R v SBZ [2013] QCA 176

PARTIES:

R
v
SBZ
(applicant)

FILE NO/S:

CA No 202 of 2012
SC No 885 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 July 2013

DELIVERED AT:

Brisbane

HEARING DATE:

3 April 2013

JUDGES:

Holmes and Gotterson JJA and Peter Lyons J
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 sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of trafficking dangerous drugs and was sentenced to five years imprisonment on each count – where the applicant seeks leave to appeal those sentences on the ground that they are manifestly excessive – where the applicant provided information to authorities regarding other offenders – whether the sentencing judge was wrong in starting his consideration of the appropriate sentence, before allowance for co-operation, at 10 to 11 years – whether the sentencing judge adequately ameliorated the sentence to recognise the applicant’s fear of being harmed in custody – whether the sentencing judge erred in taking into account the fact that imposing a sentence of less than ten years meant that the applicant would not be required to serve 80 per cent of his sentence before being eligible for parole – whether the sentence imposed was manifestly excessive in all the circumstances

Drugs Misuse Act 1986 (Qld), s 122

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, cited
R v Bradforth[2003] QCA 183, considered
R v Feakes[2009] QCA 376, considered
R v Gladkowski (2000) 115 A Crim R 446; [2000] QCA 352, considered
R v Kashton[2005] QCA 70, considered
R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited
R v Rodd; ex parte A-G (Qld)[2008] QCA 341, considered
R v Webber (2000) 114 A Crim R 381; [2000] QCA 316, considered
R v Westphal[2009] QCA 223, considered
York v The Queen (2005) 225 CLR 466; [2005] HCA 60, considered

COUNSEL:

A Vasta QC for the applicant
B J Merrin for the respondent

SOLICITORS:

McMillan Criminal Law for the applicant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: The applicant pleaded guilty to two counts of trafficking in dangerous drugs – 3,4-methylenedioxymethylamphetamine (ecstasy) and methylamphetamine on the first count and cannabis and growth hormone on the second count – and was sentenced on each count to imprisonment for five years. He also pleaded guilty to, and received lesser sentences in respect of, 11 counts of supplying a dangerous drug, methylamphetamine (on three of those counts the applicant was charged alone, and on eight counts with a co-accused, AB); one count of possession…

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 SBZ

Details

AGLC: R v SBZ [2013] QCA 176
Case: [2013] QCA 176
Decision Date: 12 July 2013

CaseChat Overview and Summary

The case of R v SBZ involved the applicant who had pleaded guilty to two counts of trafficking dangerous drugs. The applicant was sentenced to five years imprisonment on each count. The applicant sought leave to appeal the sentences on the basis that they were manifestly excessive. The appeal focused on several issues, including whether the sentencing judge erred in commencing the calculation of the appropriate sentence before considering the applicant’s cooperation with authorities, whether the judge adequately reduced the sentence to account for the applicant's fear of harm in custody, and whether the judge appropriately considered the parole eligibility implications of a sentence less than ten years.

The court examined the sentencing principles and whether the judge's approach was flawed. It considered if the starting point for the sentence was correctly set, whether the sentence was sufficiently reduced to reflect the applicant's cooperation, and if the fear of harm in custody was properly weighed. Additionally, the court assessed if the judge had erred by taking into account the parole implications of a sentence below ten years. The court concluded that the judge had not erred in these respects and that the sentence, while severe, was not manifestly excessive in the circumstances.

Ultimately, the court found that the applicant had not demonstrated that the sentence was manifestly excessive or inadequate, and the application for leave to appeal against the sentence was refused. The reasoning hinged on the court's determination that the sentencing judge had appropriately considered all relevant factors and had exercised judicial discretion within acceptable bounds.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

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 SBZ [2013] QCA 176
PARTIES:	R v SBZ (applicant)
FILE NO/S:	CA No 202 of 2012 SC No 885 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	12 July 2013
DELIVERED AT:	Brisbane
HEARING DATE:	3 April 2013
JUDGES:	Holmes and Gotterson JJA and Peter Lyons J 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 sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of trafficking dangerous drugs and was sentenced to five years imprisonment on each count – where the applicant seeks leave to appeal those sentences on the ground that they are manifestly excessive – where the applicant provided information to authorities regarding other offenders – whether the sentencing judge was wrong in starting his consideration of the appropriate sentence, before allowance for co-operation, at 10 to 11 years – whether the sentencing judge adequately ameliorated the sentence to recognise the applicant’s fear of being harmed in custody – whether the sentencing judge erred in taking into account the fact that imposing a sentence of less than ten years meant that the applicant would not be required to serve 80 per cent of his sentence before being eligible for parole – whether the sentence imposed was manifestly excessive in all the circumstances Drugs Misuse Act 1986 (Qld), s 122 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, cited R v Bradforth[2003] QCA 183, considered R v Feakes[2009] QCA 376, considered R v Gladkowski (2000) 115 A Crim R 446; [2000] QCA 352, considered R v Kashton[2005] QCA 70, considered R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited R v Rodd; ex parte A-G (Qld)[2008] QCA 341, considered R v Webber (2000) 114 A Crim R 381; [2000] QCA 316, considered R v Westphal[2009] QCA 223, considered York v The Queen (2005) 225 CLR 466; [2005] HCA 60, considered
COUNSEL:	A Vasta QC for the applicant B J Merrin for the respondent
SOLICITORS:	McMillan Criminal Law for the applicant Director of Public Prosecutions (Queensland) for the respondent