R v Tilling - [2022] QCA 5

SUPREME COURT OF QUEENSLAND

CITATION:

R v Tilling [2022] QCA 5

PARTIES:

R
v
TILLING, Jordan Anthony
(applicant)

FILE NO/S:

CA No 224 of 2021
SC No 819 of 2021
SC No 1064 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 13 August 2021 (Dalton J)

DELIVERED EX TEMPORE ON:

7 February 2022

DELIVERED AT:

Brisbane

HEARING DATE:

7 February 2022

JUDGES:

Sofronoff P, Mullins JA and Kelly J

ORDER:

Application for leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant who was 19 years old when he offended was convicted after pleading guilty to seven drug offences and one summary charge – where the applicant was sentenced to 15 months’ imprisonment with an immediate parole release date for the most serious offence which was the aggravated possession of a schedule 1 drug – whether the sentencing judge erred by unduly fettering the sentencing discretion or by treating the quantity of drug as the predominant factor – whether the sentencing judge erred by failing to take into account material considerations or alternatively failing to provide the applicant procedural fairness – whether the sentencing judge made a material error of fact – whether each sentence of imprisonment was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9

R v Kopjar[2021] QCA 219, cited
R v Lemmar[2017] QCA 34, cited

COUNSEL:

N Edridge for the applicant
E J Coker for the respondent

SOLICITORS:

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

MULLINS JA: Mr Tilling pleaded guilty to three counts of supplying a dangerous drug (counts 1-3), one count of possessing a dangerous drug MDMA in excess of two grams (count 4), two counts of possessing a dangerous drug (counts 5 and 6), one count of possessing a thing (a mobile phone) used in connection with supplying a dangerous drug (count 7) and one summary charge possessing utensils or pipes etc for use which related to a set of scales, a container, a glass and a scoop for use in connection with the consumption of a dangerous drug.
Mr Tilling was sentenced on 13 August 2021 to imprisonment of three months for each of counts 1-3, 5 and 6. He was sentenced to imprisonment of 15 months for count 4. All sentences are concurrent. He was convicted and not further punished for count 7 and the summary charge. He was given an immediate parole release date.
Mr Tilling applies for leave to appeal on the following grounds:
(a)Ground 1 - The learned sentencing judge erred by unduly fettering the sentencing discretion or by treating the quantity of drug as the predominant factor.
(b)Ground 2 - The sentencing judge erred by failing to take into account material considerations or alternatively failing to provide Mr Tilling procedural fairness.
(c)Ground 3 - The sentencing judge made a material…

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 Tilling

Details

AGLC: R v Tilling [2022] QCA 5
Case: [2022] QCA 5
Decision Date: 7 February 2022

CaseChat Overview and Summary

The applicant, who was 19 years old at the time of the offence, appealed against his sentence in the Supreme Court of Queensland. He had pleaded guilty to seven drug offences and one summary charge, including aggravated possession of a schedule 1 drug. The applicant was sentenced to 15 months’ imprisonment with an immediate parole release date for the most serious offence. The applicant argued that the sentencing judge erred in various respects, including by unduly fettering sentencing discretion, treating the quantity of the drug as the predominant factor, failing to consider material considerations, and failing to provide procedural fairness. The applicant also claimed that the sentencing judge made a material error of fact and that each sentence of imprisonment was manifestly excessive.

The court considered whether the sentencing judge had erred in any of the ways claimed by the applicant. The court examined the sentencing principles and the factors the judge took into account when imposing the sentence. The court found that the sentencing judge did not err in fettering discretion or in treating the quantity of the drug as the predominant factor. The court also found that the sentencing judge had considered all relevant material considerations and had provided procedural fairness to the applicant. The court concluded that there was no material error of fact and that the sentence was not manifestly excessive.

The court held that the applicant had not demonstrated that the sentencing judge had erred in any respect that would justify the court interfering with the sentence. The court held that the sentence was within the range of sentences that a sentencing judge could reasonably impose in the circumstances of the case. The court held that the applicant had not shown that the sentence was manifestly excessive or inadequate. The court held that the applicant had not made out any ground for the court to interfere with the sentence.

The court refused the application for leave to appeal against sentence. The applicant’s appeal against sentence was dismissed. The sentence imposed by the sentencing judge was upheld.

Orders

Orders of the court

Application for leave to appeal 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 Tilling [2022] QCA 5
PARTIES:	R v TILLING, Jordan Anthony (applicant)
FILE NO/S:	CA No 224 of 2021 SC No 819 of 2021 SC No 1064 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 13 August 2021 (Dalton J)
DELIVERED EX TEMPORE ON:	7 February 2022
DELIVERED AT:	Brisbane
HEARING DATE:	7 February 2022
JUDGES:	Sofronoff P, Mullins JA and Kelly J
ORDER:	Application for leave to appeal refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant who was 19 years old when he offended was convicted after pleading guilty to seven drug offences and one summary charge – where the applicant was sentenced to 15 months’ imprisonment with an immediate parole release date for the most serious offence which was the aggravated possession of a schedule 1 drug – whether the sentencing judge erred by unduly fettering the sentencing discretion or by treating the quantity of drug as the predominant factor – whether the sentencing judge erred by failing to take into account material considerations or alternatively failing to provide the applicant procedural fairness – whether the sentencing judge made a material error of fact – whether each sentence of imprisonment was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 9 R v Kopjar[2021] QCA 219, cited R v Lemmar[2017] QCA 34, cited
COUNSEL:	N Edridge for the applicant E J Coker for the respondent
SOLICITORS:	Hans Legal for the applicant Director of Public Prosecutions (Queensland) for the respondent