R v Stewart

[2004] QCA 320

SUPREME COURT OF QUEENSLAND

CITATION:

R v Stewart [2004] QCA 320

PARTIES:

R
v
STEWART, Peter Brian
(applicant)

FILE NO/S:

CA No 148 of 2004
SC No 11 of  2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

2 September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

2 September 2004

JUDGES:

McPherson and Williams JJA and Holmes 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 granted and appeal allowed;

2.   Alter the sentences imposed below as follows:
Count 2 – three and a half years imprisonment;
Count 3 – six months imprisonment to be served concurrent with the sentence for count 2;
Count 5 – three and a half years imprisonment, to be served cumulative on the sentences imposed on counts 2 and 3;
Count 4 – two years imprisonment to be served concurrent with the sentence on count 5;
Count 7 and 8 – two years imprisonment for each, to be served concurrently with each other, but cumulative on the remaining sentences.

3.   The recommendation for parole (post prison community based release) after three years and nine months is not disturbed. 

CATCHWORDS:

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – TOTALITY – where the applicant pleaded guilty to six offences including possession and production of methylamphetamine – where the applicant was sentenced to an effective sentence of 11 years, made up of a number of cumulative sentences, with an order for post prison community release after 3 years and 9 months – where applicant’s 520 days spent in pre-sentence custody could not be declared pursuant to s 161 of the Penalties and Sentences Act – where the applicant was unlikely to receive the benefit of post prison community based release – whether the totality principle had been adequately recognised – whether the total effect of the combined sentences is appropriate when balanced against the Applicant’s criminality

COUNSEL:

A J Donaldson with J Griffiths for the applicant
R G Martin for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA:  I'll ask Justice Holmes to deliver the first set of reasons.

HOLMES J:  The applicant seeks leave to appeal against an effective sentence of 11 years, made up of a number of cumulative sentences imposed upon six counts.  The background to those counts was as follows:  In November 2001 the police found at his residence various quantities of methylamphetamine totalling 24 grams of powder, 5.7 grams of pure.  He had an exercise book with amounts and dates written in it.  The sentence proceeded on the basis that the possession of methylamphetamine was for a commercial purpose.

There were some syringes containing methylamphetamine found, suggesting an element of personal use.  37 grams of cannabis were also found.  The applicant was sentenced to four years and eight months…