R v Seabrook - [2004] QCA 210

SUPREME COURT OF QUEENSLAND

CITATION: R v Seabrook [2004] QCA 210
PARTIES: R
v
SEABROOK, Nicholas
(applicant/appellant)
FILE NO/S: CA No 21 of 2004
SC No 540 of 2003
SC No 6 of 2004
SC No 20 of 2004
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING
COURT: Supreme Court at Brisbane
DELIVERED EX 21 June 2004
TEMPORE ON:
DELIVERED AT: Brisbane
HEARING DATE: 21 June 2004
JUDGES: McPherson, Williams and Jerrard JJA
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made
ORDERS: 1. Application for leave to appeal against sentence
granted
2. Appeal allowed to the extent only of deleting the
provision that the applicant be eligible for post prison
community based release after 12 months, and inserting
in lieu thereof an order that the sentence be suspended
after serving 12 months with an operational period of
four years
3. A warrant is to issue for the applicant’s arrest, which
warrant is to lie in the Registry for seven days
CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant convicted of trafficking in cannabis, possession of cannabis and two counts of possession of methylamphetamine – where sentenced to three and a half years imprisonment with a recommendation for release on parole after 12 months – where applicant spent time at Logan House and completed courses and had restrictions on his liberty there – whether learned sentencing judge adequately took mitigating factors into account – whether sentence manifestly excessive
R v Haygarth [1995] QCA 403; CA No 220 of 1995, 28 July
1995, cited
R v Whyte [2003] QCA 56; CA No 429 of 2002, 20 February
2003, cited
COUNSEL: C F C Wilson for the applicant/appellant
P Rutledge for the respondent
SOLICITORS: Bell Miller for the applicant/appellant
Director of Public Prosecutions (Queensland) for the
respondent

WILLIAMS JA: The applicant pleaded guilty on 2 February 2004 to an ex officio indictment alleging a series of drug-related offences committed between 31 December 2001 and 1 May 2003.

The first was that of trafficking in cannabis during that period; second was possession of cannabis on 30 April 2003; and third was two counts of possession of methylamphetamine on 30 April 2003.

He was sentenced to three and a half years' imprisonment with a recommendation for release on parole after 12 months with respect to the trafficking charge, and given sentences of six months concurrent on the other charges. He was given credit for 183 days spent in presentence custody.

He was also dealt with on that occasion with respect to a appeal, that order being made on 6 February 2004.

number of summary offences. Nothing more need be said about
them, other than that one involved the possession of a firearm
on 3 March 2003.

The material placed before the sentencing Judge established that the applicant was interviewed by police on 3 March…

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 Seabrook

Details

AGLC: R v Seabrook [2004] QCA 210
Case: [2004] QCA 210
Decision Date: 21/06/2004

CaseChat Overview and Summary

The case of R v Seabrook involved an application for leave to appeal against the sentence imposed on the applicant, who had been convicted of trafficking in cannabis, possession of cannabis, and two counts of possession of methylamphetamine. The applicant was sentenced to three and a half years imprisonment, with a recommendation for release on parole after 12 months. The applicant had already spent time at Logan House, where he completed courses and had certain restrictions on his liberty. The primary issue before the court was whether the learned sentencing judge adequately took into account the mitigating factors in the applicant’s circumstances, and whether the sentence was manifestly excessive.

The court found that the learned sentencing judge did not sufficiently consider the mitigating factors, particularly the applicant’s compliance with the terms of his sentence at Logan House. The court held that the sentence imposed was manifestly excessive given the applicant’s background and the mitigating factors. The court emphasised the importance of ensuring that sentences reflect the individual circumstances of the offender, and that appropriate weight is given to mitigating factors. Consequently, the court granted the application for leave to appeal and allowed the appeal in part. The court deleted the provision that the applicant be eligible for post-prison community-based release after 12 months and substituted an order that the sentence be suspended after serving 12 months with an operational period of four years.

The court’s final orders included granting the application for leave to appeal against the sentence. The appeal was allowed to the extent only of deleting the provision that the applicant be eligible for post-prison community-based release after 12 months, and inserting in lieu thereof an order that the sentence be suspended after serving 12 months with an operational period of four years. The court also issued a warrant for the applicant’s arrest, which was to lie in the Registry for seven days. This decision underscores the necessity for sentencing judges to thoroughly consider all relevant mitigating factors and to ensure that sentences are proportionate and reflective of the individual circumstances of the offender.

Orders

Orders of the court

1. Application for leave to appeal against sentence

granted

2. Appeal allowed to the extent only of deleting the

provision that the applicant be eligible for post prison

community based release after 12 months, and inserting

in lieu thereof an order that the sentence be suspended

after serving 12 months with an operational period of

four years

3. A warrant is to issue for the applicant’s arrest, which

warrant is to lie in the Registry for seven days

Background

Background to the litigation

Full text does not contain this section.

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 Seabrook [2004] QCA 210
PARTIES:	R v SEABROOK, Nicholas (applicant/appellant)
FILE NO/S:	CA No 21 of 2004 SC No 540 of 2003 SC No 6 of 2004 SC No 20 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX	21 June 2004
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	21 June 2004
JUDGES:	McPherson, Williams and Jerrard JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence granted 2. Appeal allowed to the extent only of deleting the provision that the applicant be eligible for post prison community based release after 12 months, and inserting in lieu thereof an order that the sentence be suspended after serving 12 months with an operational period of four years 3. A warrant is to issue for the applicant’s arrest, which warrant is to lie in the Registry for seven days
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant convicted of trafficking in cannabis, possession of cannabis and two counts of possession of methylamphetamine – where sentenced to three and a half years imprisonment with a recommendation for release on parole after 12 months – where applicant spent time at Logan House and completed courses and had restrictions on his liberty there – whether learned sentencing judge adequately took mitigating factors into account – whether sentence manifestly excessive
R v Haygarth [1995] QCA 403; CA No 220 of 1995, 28 July 1995, cited R v Whyte [2003] QCA 56; CA No 429 of 2002, 20 February 2003, cited
COUNSEL:	C F C Wilson for the applicant/appellant P Rutledge for the respondent
SOLICITORS:	Bell Miller for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent