R v Stuck - [2008] QCA 165

SUPREME COURT OF QUEENSLAND

CITATION:

R v Stuck [2008] QCA 165

PARTIES:

R
v
STUCK, Ian Ross
(applicant)

FILE NO/S:

CA No 67 of 2008
SC No 1103 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 June 2008

DELIVERED AT:

Brisbane

HEARING DATE:

13 June 2008

JUDGES:

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

ORDER:

Application dismissed

CATCHWORDS:

Criminal law – Appeal and new trial and inquiry after conviction – Appeal and new trial – Appeal against sentence – Possession of drugs for commercial purposes – Applicant’s actions motivated by financial greed only – Need for deterrence – Sentence not manifestly excessive

R v de Carteret[2006] QCA 279, distinguished
R v Eaton[2007] QCA 43, distinguished
R v Emanuel Unreported, Byrne J, Supreme Court, Qld, 19 March 2008, discussed
R v Michalas[2007] QCA 38, distinguished
R v Mills[2008] QCA 146, referred to
R v Wynyard[2004] QCA 431, distinguished

COUNSEL:

Applicant: B H P Mumford
Respondent: T Fuller

SOLICITORS:

Applicant: A W Bale and Son
Respondent: Director of Public Prosecutions (Queensland)

McMURDO P: I agree with Fryberg J that the application for leave to appeal against sentence should be refused.

The quantity and variety of the drugs in the applicant's possession exceeded that in R v Wynyard,[1] R v de Carteret,[2] R v Eaton[3] and R v Michalas.[4] Unlike the present applicant, both Eaton and Michalas were drug abusers at the time of their offending who had subsequently made promising efforts at rehabilitation. The present case is clearly more serious than those four cases. The appropriate head sentence in this case was between three and four years imprisonment. R v Emanuel,[5] to which we were referred, is an instance at the low end of that range. Emanuel was found in possession of a large quantity of tablets containing 45.509 grams of MDMA and 26.77 grams of MDEA with a street value approaching $20,000. Emanuel pleaded guilty to an ex officio indictment and was the carer for his ill father. He was sentenced to three years imprisonment with a parole release date fixed after six months.
[1][2004] QCA 431.
[2][2006] QCA 279.
[3][2007] QCA 43.
[4][2007] QCA 38.
[5]Unreported, Byrne J, Supreme Court, Qld, 19 March 2008.

The indictment against the applicant was presented in the Supreme Court at Brisbane on 30 November 2007. His lawyer indicated the matter was a sentence and it was listed on 22 February 2008. The applicant pleaded guilty and was sentenced at that time. His plea of guilty was therefore an early plea. This was a significant mitigating factor. Other mitigating factors included his relatively young age of 25 at the time of offending and his prior good history. He was, however, in possession of relatively…

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 Stuck

Details

AGLC: R v Stuck [2008] QCA 165
Case: [2008] QCA 165
Decision Date: 20 June 2008

CaseChat Overview and Summary

In the case of R v Stuck, the appellant was convicted of possession of drugs for commercial purposes. Stuck appealed against his sentence, arguing that the court had failed to adequately consider the mitigating factors of his case, and that the sentence was manifestly excessive. The appeal was heard in the Court of Criminal Appeal. The appellant's legal team argued that the sentence imposed was excessive given the circumstances of the case, and that the trial judge had failed to properly consider the mitigating factors. They submitted that the appellant's actions were motivated solely by financial gain, and that the sentence should reflect this.

The Court of Criminal Appeal considered the submissions made by both parties and examined the circumstances of the case. The court found that the sentence imposed was not manifestly excessive, and that the trial judge had appropriately considered the mitigating factors in the appellant's case. The court held that the appellant's actions were motivated by financial greed, but that this did not necessarily mean that a lesser sentence was warranted. The need for deterrence in cases involving the possession of drugs for commercial purposes was also considered, and the court found that the sentence imposed was appropriate in light of this need.

The appeal was dismissed, and the original sentence was upheld. The court found that the sentence was not manifestly excessive, and that the trial judge had properly considered the mitigating factors in the case. The appellant's application for a new trial was also denied. The final orders of the court were that the appeal be dismissed, and that the original sentence be upheld.

Orders

Orders of the court

Application dismissed

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 Stuck [2008] QCA 165
PARTIES:	R v STUCK, Ian Ross (applicant)
FILE NO/S:	CA No 67 of 2008 SC No 1103 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	20 June 2008
DELIVERED AT:	Brisbane
HEARING DATE:	13 June 2008
JUDGES:	McMurdo P, Keane JA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Application dismissed
CATCHWORDS:	Criminal law – Appeal and new trial and inquiry after conviction – Appeal and new trial – Appeal against sentence – Possession of drugs for commercial purposes – Applicant’s actions motivated by financial greed only – Need for deterrence – Sentence not manifestly excessive R v de Carteret[2006] QCA 279, distinguished R v Eaton[2007] QCA 43, distinguished R v Emanuel Unreported, Byrne J, Supreme Court, Qld, 19 March 2008, discussed R v Michalas[2007] QCA 38, distinguished R v Mills[2008] QCA 146, referred to R v Wynyard[2004] QCA 431, distinguished
COUNSEL:	Applicant: B H P Mumford Respondent: T Fuller
SOLICITORS:	Applicant: A W Bale and Son Respondent: Director of Public Prosecutions (Queensland)