R v Summerlin - [2009] QCA 297

SUPREME COURT OF QUEENSLAND

CITATION:

R v Summerlin [2009] QCA 297

PARTIES:

R
v
SUMMERLIN, Lawrence Roderick
(applicant)

FILE NO/S: CA No 82 of 2009
SC No 1193 of 2008
SC No 987 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 October 2009

DELIVERED AT:

Brisbane

HEARING DATE:

25 September 2009

JUDGES:

Keane and Fraser JJA and Jones J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:
1.   Application for leave to appeal granted.

2.   Appeal allowed.

3.   Set aside the orders made by the sentencing judge and instead make the following orders:

The applicant is ordered to serve the whole of the concurrent suspended sentences of 2 years, 18 months and 12 months imposed on 23 March 2007.(a)

Declare that that sentence commenced on 13 March 2009.(b)

Fix 13 March 2009 as the parole release date under that sentence.(c)

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted of five drug offences and sentenced to concurrent terms of imprisonment of two years, 18 months and 12 months, wholly suspended, with an operational period of four years – where applicant committed further offences during operational period – where applicant ordered to serve 23 months of the two year suspended term of imprisonment but was given the benefit of immediate release on parole – where sentencing judge left the 18 month and 12 month terms of imprisonment ‘as they stand’ – whether the sentencing judge erred in exercising the power conferred by s 147 Penalties and Sentences Act 1992 (Qld) by making an unjust order – whether sentence manifestly excessive

Corrective Services Act 2006 (Qld), s 209, s 211
Penalties and Sentences Act 1992 (Qld), s 147

Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, cited
R v Clewes[2008] QCA 46, cited
R v Marsanic (2008) 186 A Crim R 384; [2008] QCA 219, cited
R v Muller [2006] 2 Qd R 126; [2005] QCA 417, cited
R v Norden[2009] QCA 42, cited
R v Sartori[2006] QCA 284, cited

COUNSEL: D R Kent for the applicant
B J Power for the respondent

SOLICITORS:

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

KEANE JA:I have had the advantage of reading the reasons for judgment prepared by Fraser JA. I agree with those reasons and with the orders proposed by his Honour.

FRASER JA: On 23 March 2007 the applicant was convicted on his pleas of guilty of five offences: supply of a second schedule drug (count 1), possession of a second schedule drug in excess of the third schedule amount (count 2), possession of a first schedule drug (counts 3 & 4), and possession of a second schedule drug (count 5).…

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 Summerlin

Details

AGLC: R v Summerlin [2009] QCA 297
Case: [2009] QCA 297
Decision Date: 9 October 2009

CaseChat Overview and Summary

The applicant, Summerlin, was convicted of five drug offences and was sentenced to concurrent terms of imprisonment of two years, 18 months, and 12 months, which were wholly suspended, with an operational period of four years. The applicant committed further offences during the operational period, resulting in the activation of the two-year suspended term of imprisonment, which was reduced to 23 months, and the applicant was granted immediate release on parole. The sentencing judge left the 18-month and 12-month terms of imprisonment ‘as they stand’. The applicant appealed against the sentence, arguing that it was manifestly excessive or inadequate and that the sentencing judge erred in exercising the power conferred by s 147 Penalties and Sentences Act 1992 (Qld) by making an unjust order.

The court considered whether the sentencing judge erred in exercising the power conferred by s 147 Penalties and Sentences Act 1992 (Qld) by making an unjust order and whether the sentence was manifestly excessive. The court held that the sentencing judge did err in exercising the power conferred by s 147, as the judge failed to take into account that the applicant had already served 23 months of the two-year suspended term of imprisonment. The court also held that the sentence was manifestly excessive as the sentencing judge did not consider the applicant's good conduct while on parole and the fact that the applicant had already served a significant portion of the sentence. The court found that the sentence was manifestly excessive and inadequate, and the sentencing judge erred in exercising the power conferred by s 147.

The court allowed the appeal and set aside the orders made by the sentencing judge. The court ordered that the applicant is to serve the whole of the concurrent suspended sentences of 2 years, 18 months, and 12 months imposed on 23 March 2007. The court also declared that the sentence commenced on 13 March 2009 and fixed 13 March 2009 as the parole release date under that sentence. The court granted the applicant leave to appeal and allowed the appeal, setting aside the orders made by the sentencing judge and making new orders.

Orders

Orders of the court

1. Application for leave to appeal granted.

2. Appeal allowed.

3. Set aside the orders made by the sentencing judge and instead make the following orders:

The applicant is ordered to serve the whole of the concurrent suspended sentences of 2 years, 18 months and 12 months imposed on 23 March 2007.(a)

Declare that that sentence commenced on 13 March 2009.(b)

Fix 13 March 2009 as the parole release date under that sentence.(c)

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 Summerlin [2009] QCA 297
PARTIES:	R v SUMMERLIN, Lawrence Roderick (applicant)
FILE NO/S:	CA No 82 of 2009 SC No 1193 of 2008 SC No 987 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	9 October 2009
DELIVERED AT:	Brisbane
HEARING DATE:	25 September 2009
JUDGES:	Keane and Fraser JJA and Jones J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal granted. 2. Appeal allowed. 3. Set aside the orders made by the sentencing judge and instead make the following orders: The applicant is ordered to serve the whole of the concurrent suspended sentences of 2 years, 18 months and 12 months imposed on 23 March 2007.(a) Declare that that sentence commenced on 13 March 2009.(b) Fix 13 March 2009 as the parole release date under that sentence.(c)
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted of five drug offences and sentenced to concurrent terms of imprisonment of two years, 18 months and 12 months, wholly suspended, with an operational period of four years – where applicant committed further offences during operational period – where applicant ordered to serve 23 months of the two year suspended term of imprisonment but was given the benefit of immediate release on parole – where sentencing judge left the 18 month and 12 month terms of imprisonment ‘as they stand’ – whether the sentencing judge erred in exercising the power conferred by s 147 Penalties and Sentences Act 1992 (Qld) by making an unjust order – whether sentence manifestly excessive Corrective Services Act 2006 (Qld), s 209, s 211 Penalties and Sentences Act 1992 (Qld), s 147 Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, cited R v Clewes[2008] QCA 46, cited R v Marsanic (2008) 186 A Crim R 384; [2008] QCA 219, cited R v Muller [2006] 2 Qd R 126; [2005] QCA 417, cited R v Norden[2009] QCA 42, cited R v Sartori[2006] QCA 284, cited
COUNSEL:	D R Kent for the applicant B J Power for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent