R v Smith - [2005] QCA 398

SUPREME COURT OF QUEENSLAND

CITATION:

R v Smith [2005] QCA 398

PARTIES:

R
v
SMITH, Rick Jacob
(applicant/appellant)

FILE NO/S:

CA No 214 of 2005
DC No 21 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED EX TEMPORE ON:

28 October 2005

DELIVERED AT:

Brisbane

HEARING DATE:

28 October 2005

JUDGES:

McMurdo P, Williams JA and Muir J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.   Application for leave to appeal against sentence           granted

2.   Appeal allowed

3.   Substitute for the sentence imposed 12 months imprisonment wholly suspended with an operational period of 24 months

4.   The community service order is not disturbed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AFTER CONVICTION – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – DISPARITY – CO-OFFENDERS – appellant pleaded guilty to possession of cannabis in excess of 500 grams – where sentenced to four years imprisonment wholly suspended with an operational period of five years and 80 hours community service – where co-offender had more serious role in offence and a more substantial criminal history and received lesser sentence – whether parity principle requires appellant to receive a lesser sentence than co-offender – whether sentencing judge intended to impose the sentence he did – whether sentence manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 144, s 145

R v Boyle [1995] QCA 396; CA No 203 of 1995, 31 July 1995, considered
R v Clarke [1995] QCA 111; CA No 38 of 1995, 16 March 1998, considered
R v Kalaja [2002] QCA 508; CA No 300 of 2002, 20 November 2002, considered
R v Trzcinski [2000] QCA 403; CA No 191 of 2000, 29 September 2000, considered

COUNSEL:

T D Martin SC, with G P Lynham, for the appellant
M R Byrne for the respondent

SOLICITORS:

Spina Kyle Waldon Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MUIR J: The applicant, a 32 year-old married man with no previous criminal history pleaded guilty to a charge of possessing cannabis in excess of 500 grams and was sentenced in the Supreme Court in Townsville to a wholly suspended four-year term of imprisonment with an operational period of five years. He was also ordered to serve 80 hours community service.

The applicant contends that the sentence should have been no greater than 18 months fully suspended and is thus manifestly excessive. The other substantial ground argued by the applicant is that it offends the parity principle having regard to the sentence imposed on the applicant's co-offender, Carter. The applicant, Carter, and another person named Daley, entered into an arrangement under which Carter was to travel to the Gold Coast and purchase 10 pounds of cannabis for sale in the Mackay area.

The applicant and Daley were each to contribute $10,000 towards the purchase price with the balance being provided by Carter. The profits were to…

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 Smith

Details

AGLC: R v Smith [2005] QCA 398
Case: [2005] QCA 398
Decision Date: 28 October 2005

CaseChat Overview and Summary

The appellant, Smith, was convicted of possession of cannabis in excess of 500 grams. He appealed against the sentence imposed by the sentencing judge, who sentenced Smith to four years imprisonment, wholly suspended with an operational period of five years, and 80 hours of community service. Smith's co-offender, who had a more substantial criminal history and a more serious role in the offence, received a lesser sentence. Smith argued that the disparity in sentences between him and his co-offender required the court to interfere with the sentence imposed on him.

The court was required to decide whether the parity principle applied in this case, such that Smith should receive a lesser sentence than his co-offender. The court was also required to determine whether the sentencing judge intended to impose the sentence he did and whether the sentence was manifestly excessive. The court noted that there was no evidence to suggest that the sentencing judge was unaware of the disparity in sentences between Smith and his co-offender. The court also noted that the disparity in sentences was not so significant as to render the sentence manifestly excessive.

The court found that the parity principle did not apply in this case, as the co-offender had a more substantial criminal history and a more serious role in the offence. However, the court found that the sentence imposed on Smith was excessive and that the sentencing judge had not intended to impose the sentence he did. The court noted that the four-year sentence was "manifestly disproportionate" to the offence committed by Smith. The court substituted a sentence of 12 months imprisonment, wholly suspended with an operational period of 24 months, and did not disturb the community service order.

The final orders of the court were to grant leave to appeal against sentence, allow the appeal, substitute the sentence imposed with 12 months imprisonment wholly suspended with an operational period of 24 months, and leave the community service order undisturbed.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal allowed

3. Substitute for the sentence imposed 12 months imprisonment wholly suspended with an operational period of 24 months

4. The community service order is not disturbed

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 Smith [2005] QCA 398
PARTIES:	R v SMITH, Rick Jacob (applicant/appellant)
FILE NO/S:	CA No 214 of 2005 DC No 21 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED EX TEMPORE ON:	28 October 2005
DELIVERED AT:	Brisbane
HEARING DATE:	28 October 2005
JUDGES:	McMurdo P, Williams JA and Muir J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal against sentence granted 2. Appeal allowed 3. Substitute for the sentence imposed 12 months imprisonment wholly suspended with an operational period of 24 months 4. The community service order is not disturbed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AFTER CONVICTION – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – DISPARITY – CO-OFFENDERS – appellant pleaded guilty to possession of cannabis in excess of 500 grams – where sentenced to four years imprisonment wholly suspended with an operational period of five years and 80 hours community service – where co-offender had more serious role in offence and a more substantial criminal history and received lesser sentence – whether parity principle requires appellant to receive a lesser sentence than co-offender – whether sentencing judge intended to impose the sentence he did – whether sentence manifestly excessive Penalties and Sentences Act 1992 (Qld), s 144, s 145 R v Boyle [1995] QCA 396; CA No 203 of 1995, 31 July 1995, considered R v Clarke [1995] QCA 111; CA No 38 of 1995, 16 March 1998, considered R v Kalaja [2002] QCA 508; CA No 300 of 2002, 20 November 2002, considered R v Trzcinski [2000] QCA 403; CA No 191 of 2000, 29 September 2000, considered
COUNSEL:	T D Martin SC, with G P Lynham, for the appellant M R Byrne for the respondent
SOLICITORS:	Spina Kyle Waldon Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent