R v Stevens - [2023] QCA 241

SUPREME COURT OF QUEENSLAND

CITATION:

R v Stevens [2023] QCA 241

PARTIES:

R
v
STEVENS, Liam Dale
(applicant)

FILE NO/S:

CA No 159 of 2023
DC No 15 of 2023
DC No 417 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville – Date of Sentence: 7 September 2023 (Farr SC DCJ)

DELIVERED ON:

1 December 2023

DELIVERED AT:

Brisbane

HEARING DATE:

22 November 2023

JUDGES:

Morrison and Bond JJA and Crow J

ORDER:

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 trafficking in a dangerous drug (count 2), possessing a dangerous drug (counts 3-5) and other offences including two summary charges – where during the trafficking period the applicant was 21 years old and had no relevant prior criminal history – where the applicant was sentenced to two years and six months’ imprisonment for count 2, nine months’ imprisonment for each of counts 3 and 4 and convicted but not further punished on the other counts with a parole release date after serving five months in custody – where the applicant submitted that his rehabilitation was not considered by the sentencing judge – whether the sentence was manifestly excessive

R v Dowel; Ex parte Attorney-General (Qld)[2013] QCA 8, considered
R v Eaton[2019] QCA 147, considered

COUNSEL:

P J Wilson for the applicant
M J Wilson for the respondent

SOLICITORS:

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

MORRISON JA: The applicant pleaded guilty to a number of drug related charges which can be summarised as:
(a)count 2 – trafficking in a dangerous drug, namely cannabis;
(b)counts 3, 4 and 5 – possessing a dangerous drug, namely cannabis, ketamine, and lysergide;
(c)counts 6 and 8 – possessing a thing used in connection with trafficking a dangerous drug, namely clip-seal bags, a grinder, a mobile phone, and scales;
(d)count 7 – possessing property obtained from trafficking in a dangerous drug, namely $4,710 in cash;
(e)count 9 – producing a dangerous drug, namely cannabis; and
(f)count 10 – a summary offence of possession of a water pipe used in connection with smoking a dangerous drug.
He was sentenced on 7 September 2023 to the following concurrent sentences:
(a)count 2 (trafficking) – two and a-half years’ imprisonment;
(b)count 3 and 4 (possession of cannabis) – nine months’ imprisonment; and
(c)counts 5, 6, 7, 8, 9 and 10 – convicted and not further punished.[1]
[1]Because they were particulars of the trafficking.
A parole release date of 7 February 2024 was set, after serving five months.
The applicant seeks leave to challenge the sentences on the sole ground that they are manifestly excessive. As developed before this Court, the contention is that requiring the applicant to serve any period of actual custody is what renders the sentence manifestly excessive. The order…

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 Stevens

Details

AGLC: R v Stevens [2023] QCA 241
Case: [2023] QCA 241
Decision Date: 1 December 2023

CaseChat Overview and Summary

The case of R v Stevens involved the applicant who pleaded guilty to trafficking in a dangerous drug, possessing a dangerous drug, and other related offences. The applicant, who was 21 years old at the time of the offence and had no prior criminal history, was sentenced to a period of imprisonment with a parole release date set after serving five months. The applicant appealed against the sentence, arguing it was manifestly excessive and did not adequately consider his rehabilitation efforts.

The court was tasked with determining whether the sentence was manifestly excessive, considering the applicant's lack of prior criminal history and efforts towards rehabilitation. The applicant's counsel argued that the imposition of a custodial sentence would jeopardise his rehabilitation and that the potential benefits of rehabilitation should have outweighed the need for general deterrence and denunciation. The court considered whether the sentencing judge appropriately weighed the applicant's rehabilitation efforts against the serious nature of the commercial trafficking offence.

The court rejected the applicant's submission, finding that the sentencing judge had appropriately considered the applicant's rehabilitation efforts but did not discount them as the sole factor. The court noted that there was no evidence to suggest that serving a short period of actual custody would jeopardise the applicant's rehabilitation, as he had strong support from his employer and family. The court also highlighted that the nature of the offence, being purely for profit and without any claim of addiction, warranted a custodial sentence. Therefore, the court held that the sentence was not manifestly excessive.

Leave to appeal against the sentence was refused.

Orders

Orders of the court

Leave to appeal against sentence 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

When setting the parole release date the learned sentencing judge made these comments:“I will set your parole release date at a much earlier date than the one-third mark that would usually be set, and I will make it after a period of some five months, to reflect both – or to reflect your plea of guilty at an early stage, your lack of prior convictions and the steps that you have taken towards rehabilitation. So your parole release date will be the 7th of February 2024, at which time you will be the subject of parole for the balance of that sentence.”Consideration Counsel for the applicant submits that sentencing the applicant to a period of actual custody was inappropriate because of the potential to jeopardise the applicant’s rehabilitation, and therefore considerations of general and personal deterrence and denunciation should have given way. It was said that this was a case where the need for general deterrence and denunciation did not outweigh the potential adverse effect of actual imprisonment in terms of the applicant’s ongoing rehabilitation. Moreover, it was said that there was a very real chance that the imposition of an actual term of custody “may do much to jeopardise that rehabilitation”. Further, in reliance upon R v Dowel; Ex parte Attorney-General (Qld)[3] it was submitted that it was not inevitable that there should be a custodial sentence in a trafficking case.[3][2013] QCA 8 at [21]. In my view, there are several reasons to reject that submission. First, the learned sentencing judge specifically took into account the positive efforts towards rehabilitation and did not discount them. However, beyond submissions from his counsel, there was no evidence tendered to suggest that there would be any harmful impact on the applicant’s rehabilitation. He had the support of his employer and his immediate and wider family. There was nothing to suggest that support would not continue. In fact, the employer said that his employment would not be jeopardised, saying of the applicant that he was a “reliable, hardworking, trustworthy, and productive employee”, and “I am looking forward to our personal and professional relationship developing in the next years”.[4][4]AB 89. Secondly, the applicant’s rehabilitation was not formative or teetering. It was well progressed, as his Honour recognised. He was doing regular drug tests, seeing a psychologist, had a stable relationship with assured place of residence, and solid plans for the future. None of that suggests that he was likely to go backwards if required to serve a short period of actual custody. Thirdly, as the sentencing judge recognised, progress towards rehabilitation was just one factor to be weighed in the considerations. A competing consideration was that which flowed from the serious nature of the commercial trafficking in which the applicant engaged. There was no claim, as there is in many cases, that it was done to support an addiction. This was purely for profit, and but for the police detection the applicant was seeking to continue the business and grow it.

CITATION:	R v Stevens [2023] QCA 241
PARTIES:	R v STEVENS, Liam Dale (applicant)
FILE NO/S:	CA No 159 of 2023 DC No 15 of 2023 DC No 417 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville – Date of Sentence: 7 September 2023 (Farr SC DCJ)
DELIVERED ON:	1 December 2023
DELIVERED AT:	Brisbane
HEARING DATE:	22 November 2023
JUDGES:	Morrison and Bond JJA and Crow J
ORDER:	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 trafficking in a dangerous drug (count 2), possessing a dangerous drug (counts 3-5) and other offences including two summary charges – where during the trafficking period the applicant was 21 years old and had no relevant prior criminal history – where the applicant was sentenced to two years and six months’ imprisonment for count 2, nine months’ imprisonment for each of counts 3 and 4 and convicted but not further punished on the other counts with a parole release date after serving five months in custody – where the applicant submitted that his rehabilitation was not considered by the sentencing judge – whether the sentence was manifestly excessive R v Dowel; Ex parte Attorney-General (Qld)[2013] QCA 8, considered R v Eaton[2019] QCA 147, considered
COUNSEL:	P J Wilson for the applicant M J Wilson for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent