R v Thearle - [2012] QCA 42

SUPREME COURT OF QUEENSLAND

CITATION:

R v Thearle [2012] QCA 42

PARTIES:

R
v
THEARLE, Chasse William
(applicant)

FILE NO/S:

CA No 296 of 2011
SC No 924 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 March 2012

DELIVERED AT:

Brisbane

HEARING DATE:

3 February 2012

JUDGES:

Margaret McMurdo P, and Fraser and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

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 applicant pleaded guilty to trafficking in cannabis, possession of cannabis, possession of a thing used in connection with trafficking, and two summary offences – where applicant sentenced to two and a half years imprisonment on the trafficking count, with parole release fixed after serving eight months, 12 months imprisonment for the possession count, six months imprisonment for the possession of a thing used in connection count, and convicted and not further punished for the summary offences – where applicant contends that the parole release date did not sufficiently take his particular mitigating circumstances into account – whether the sentence fell outside the range of a sound sentencing discretion – where applicant contends that there was an absence of procedural fairness in that earlier sentences relied upon were not placed before the sentencing judge nor defence counsel – whether the earlier sentences could have resulted in submissions which might have caused a lesser penalty to be imposed

Weapons Act 1990 (Qld)

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, distinguished
Green v The Queen; Quinn v The Queen (2011) 86 ALJR 36; [2011] HCA 49, discussed
R v Dolan [2008] QCA 41, distinguished
R v Gault[2006] QCA 316, discussed
R v Vellacott[1997] QCA 223, discussed
R v Townsend, unreported, Supreme Court of Queensland, No 187 of 2011, 26 October 2011, distinguished

COUNSEL:

M Byrne QC for the applicant
B J Merrin for the respondent

SOLICITORS:

Brisbane Criminal Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: I agree with White JA's reasons for refusing this application for leave to appeal against sentence. The applicant was a young man when he offended and had no prior convictions. He confessed to police to trafficking in cannabis for a longer period than their investigations revealed. Material placed before the sentencing court suggested that he had successfully rehabilitated in the 20 months between the commission of his offence and sentence. He was in steady employment and supporting a young family. Commendably, he had worked as a volunteer with the SES assisting victims of the January 2011 flood. In those circumstances, the judge could have granted an immediate parole release date or set a parole release date earlier than she did: see, for…

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 Thearle

Details

AGLC: R v Thearle [2012] QCA 42
Case: [2012] QCA 42
Decision Date: 9 March 2012

CaseChat Overview and Summary

In the matter of R v Thearle, the applicant, who had pleaded guilty to trafficking in cannabis, possession of cannabis, possession of a thing used in connection with trafficking, and two summary offences, sought leave to appeal against the sentence imposed. The sentencing judge sentenced the applicant to two and a half years imprisonment for the trafficking count, with parole release after serving eight months, 12 months imprisonment for the possession count, six months imprisonment for the possession of a thing used in connection count, and convicted but not further punished for the summary offences. The applicant contended that the parole release date did not sufficiently take into account his particular mitigating circumstances and that the sentence fell outside the range of a sound sentencing discretion. Additionally, the applicant argued that there was an absence of procedural fairness in that earlier sentences relied upon were not placed before the sentencing judge nor defence counsel.

The legal issues before the court were whether the sentence imposed was manifestly excessive or inadequate and whether there was an absence of procedural fairness. The court considered the principles of sentencing and the factors that should be taken into account when determining an appropriate sentence. The court also considered the requirement for procedural fairness in sentencing and whether the failure to disclose earlier sentences resulted in a miscarriage of justice.

The court held that the sentence imposed was not manifestly excessive or inadequate and that the parole release date was appropriate given the circumstances of the case. The court found that the sentencing judge had taken into account the applicant's mitigating circumstances and that the sentence fell within the range of a sound sentencing discretion. The court also held that there was no absence of procedural fairness as the failure to disclose earlier sentences did not result in a miscarriage of justice.

Leave to appeal against sentence is 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

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CITATION:	R v Thearle [2012] QCA 42
PARTIES:	R v THEARLE, Chasse William (applicant)
FILE NO/S:	CA No 296 of 2011 SC No 924 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	9 March 2012
DELIVERED AT:	Brisbane
HEARING DATE:	3 February 2012
JUDGES:	Margaret McMurdo P, and Fraser and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
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 applicant pleaded guilty to trafficking in cannabis, possession of cannabis, possession of a thing used in connection with trafficking, and two summary offences – where applicant sentenced to two and a half years imprisonment on the trafficking count, with parole release fixed after serving eight months, 12 months imprisonment for the possession count, six months imprisonment for the possession of a thing used in connection count, and convicted and not further punished for the summary offences – where applicant contends that the parole release date did not sufficiently take his particular mitigating circumstances into account – whether the sentence fell outside the range of a sound sentencing discretion – where applicant contends that there was an absence of procedural fairness in that earlier sentences relied upon were not placed before the sentencing judge nor defence counsel – whether the earlier sentences could have resulted in submissions which might have caused a lesser penalty to be imposed Weapons Act 1990 (Qld) AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, distinguished Green v The Queen; Quinn v The Queen (2011) 86 ALJR 36; [2011] HCA 49, discussed R v Dolan [2008] QCA 41, distinguished R v Gault[2006] QCA 316, discussed R v Vellacott[1997] QCA 223, discussed R v Townsend, unreported, Supreme Court of Queensland, No 187 of 2011, 26 October 2011, distinguished
COUNSEL:	M Byrne QC for the applicant B J Merrin for the respondent
SOLICITORS:	Brisbane Criminal Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent