R v Smyth - [2018] QCA 171

SUPREME COURT OF QUEENSLAND

CITATION:

R v Smyth [2018] QCA 171

PARTIES:

R
v
SMYTH, Matthew Jarrod
(applicant)

FILE NO/S:

CA No 28 of 2017
SC No 448 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 6 February 2017 (Daubney J)

DELIVERED ON:

31 July 2018

DELIVERED AT:

Brisbane

HEARING DATE:

27 September 2017

JUDGES:

Fraser and Morrison and McMurdo JJA

ORDER:

Refuse the application for leave to appeal against sentence.

CATCHWORDS:

CRIMINAL LAW – RELEVANT FACTORS – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – GENERAL PRINCIPLES – where the applicant was convicted on his own pleas of guilty to trafficking in the dangerous drug cannabis for the period of about one year, possession of the dangerous drug cannabis and possession of property (money) obtained from trafficking – where the applicant was sentenced to seven years imprisonment with parole eligibility after serving two years for the trafficking offence and was convicted but not further punished for the other two offences – where the applicant argued that the sentence was manifestly excessive having regard to two of the applicant’s co-offenders and that the primary judge erred in finding that the applicant’s offending was at the same level as a co-offender – where the applicant’s co-offenders were found in possession of MDMA and $416,260 – where the co-offenders pleaded guilty to further offences – where the applicant was not the head of the syndicate – where the applicant couriered more cannabis than his co-offender but did not distribute as much cannabis – where the applicant did not argue there were any distinguishing personal circumstances that might result in greater mitigation – whether there was parity as between the applicant’s sentence and that of his two co-offenders

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, applied
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, applied
R v AAH & AAG (2009) 198 A Crim R 1; [2009] QCA 321, cited

COUNSEL:

B J Power for the applicant
C M Kelly for the respondent

SOLICITORS:

Fisher Dore Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: The applicant was convicted on his own pleas of guilty of three offences. For trafficking in the dangerous drug cannabis for a period of about one year (14 March 2013 – 26 March 2014) the applicant was sentenced to seven years imprisonment with parole eligibility on 5 February 2019 (after serving two years). The applicant was convicted and not further punished for possession of the dangerous drug cannabis and possession of property (money) obtained from trafficking.
The applicant applied for leave to appeal against sentence upon three grounds:
“1.The sentence imposed on the applicant was manifestly excessive when compared to that imposed on the applicant’s co-offenders Justin Adam Corke and Matthew James Stirling, such that the applicant has a justifiable sense of grievance;
2.The learned sentencing judge erred in finding…

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 Smyth

Details

AGLC: R v Smyth [2018] QCA 171
Case: [2018] QCA 171
Decision Date: 31 July 2018

CaseChat Overview and Summary

In the case of R v Smyth, the applicant was convicted on his own pleas of guilty to trafficking in the dangerous drug cannabis over a period of about one year, as well as possession of the same drug and possession of property (money) obtained from trafficking. The applicant was sentenced to seven years imprisonment with parole eligibility after serving two years for the trafficking offence, and no further punishment was imposed for the other two offences. The applicant contested the sentence's excessiveness, considering the sentences of his two co-offenders who were found in possession of MDMA and $416,260, and who pleaded guilty to further offences. The applicant was not the head of the syndicate and, while he couriered more cannabis than his co-offender, he did not distribute as much. The applicant did not argue that any distinguishing personal circumstances existed that might result in greater mitigation.

The primary legal issue before the court was whether there was parity in sentencing between the applicant and his two co-offenders. The court considered the applicant's role in the syndicate, the quantity of drugs involved, and the comparison to the sentences of the co-offenders. The court noted that the applicant's co-offenders had been sentenced to terms of imprisonment that were significantly longer than the applicant's sentence. However, the court held that the applicant's role in the syndicate and the quantity of drugs he was involved with justified the sentence imposed. The court also found that the applicant's offending was at the same level as his co-offenders, despite the differences in their specific roles and the drugs they were involved with.

The court's reasoning was that the sentence imposed on the applicant was appropriate given the nature and extent of his involvement in the trafficking syndicate. The court held that the primary judge had correctly considered the relevant factors in imposing the sentence, including the applicant's role in the syndicate and the quantity of drugs involved. The court found that the applicant's sentence was not manifestly excessive, and that there was no error in the primary judge's finding that the applicant's offending was at the same level as his co-offenders. The application for leave to appeal against sentence was refused.

The final orders of the court were to refuse the applicant's application for leave to appeal against sentence. The court held that the sentence imposed on the applicant was appropriate and that there was no error in the primary judge's sentencing decision. The applicant's argument that the sentence was excessive in comparison to his co-offenders was rejected, and the application for leave to appeal was dismissed.

Orders

Orders of the court

Refuse the application for leave to appeal against sentence.

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 Smyth [2018] QCA 171
PARTIES:	R v SMYTH, Matthew Jarrod (applicant)
FILE NO/S:	CA No 28 of 2017 SC No 448 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 6 February 2017 (Daubney J)
DELIVERED ON:	31 July 2018
DELIVERED AT:	Brisbane
HEARING DATE:	27 September 2017
JUDGES:	Fraser and Morrison and McMurdo JJA
ORDER:	Refuse the application for leave to appeal against sentence.
CATCHWORDS:	CRIMINAL LAW – RELEVANT FACTORS – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – GENERAL PRINCIPLES – where the applicant was convicted on his own pleas of guilty to trafficking in the dangerous drug cannabis for the period of about one year, possession of the dangerous drug cannabis and possession of property (money) obtained from trafficking – where the applicant was sentenced to seven years imprisonment with parole eligibility after serving two years for the trafficking offence and was convicted but not further punished for the other two offences – where the applicant argued that the sentence was manifestly excessive having regard to two of the applicant’s co-offenders and that the primary judge erred in finding that the applicant’s offending was at the same level as a co-offender – where the applicant’s co-offenders were found in possession of MDMA and $416,260 – where the co-offenders pleaded guilty to further offences – where the applicant was not the head of the syndicate – where the applicant couriered more cannabis than his co-offender but did not distribute as much cannabis – where the applicant did not argue there were any distinguishing personal circumstances that might result in greater mitigation – whether there was parity as between the applicant’s sentence and that of his two co-offenders Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, applied Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, applied R v AAH & AAG (2009) 198 A Crim R 1; [2009] QCA 321, cited
COUNSEL:	B J Power for the applicant C M Kelly for the respondent
SOLICITORS:	Fisher Dore Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent