R v Turner - [2023] QCA 108

SUPREME COURT OF QUEENSLAND

CITATION:

R v Turner [2023] QCA 108

PARTIES:

R
v
TURNER, Luke
(applicant)

FILE NO/S:

CA No 58 of 2023
DC No 151 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 13 March 2023 (Burnett DCJ)

DELIVERED ON:

Date of Order: 19 May 2023
Date of Publication of Reasons: 26 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

19 May 2023

JUDGES:

Mullins P and Morrison and Boddice JJA

ORDER:

Date of Order: 19 May 2023

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to producing cannabis in excess of 500 grams (count 1), possessing things used in connection with producing a dangerous drug (count 2) and possessing cannabis in excess of 500 grams (count 3) – where the applicant was sentenced to two and one-half years’ imprisonment for count 1, 18 months’ imprisonment for count 2 and two years’ imprisonment for count 3 with a parole release date fixed after the applicant serves six months in custody – where the applicant was 36 years old and had a minor criminal history and a 2011 conviction for possession of cannabis with a circumstance of aggravation where the cannabis was for personal use – where the applicant with his sister and her partner as co-offenders grew cannabis plants for 20 months with the police seizing approximately 244 kgs of cannabis plants – where the police executed a search warrant at the applicant’s home where dried and drying cannabis weighing 47.5 kgs was located – where the applicant had suffered from a spinal cord injury since 2015 with neurological deficits and chronic symptoms – whether there was an error of fact by the sentencing judge that the applicant’s medical condition could be appropriately managed in custody – whether the sentence was manifestly excessive by reason of the requirement that the applicant serve six months in actual custody

R v Hinton [2016] QCA 316, cited

COUNSEL:

A M Hoare for the applicant
S J Muir for the respondent

SOLICITORS:

Suthers George for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: Mr Turner pleaded guilty on 1 March 2023 to producing a dangerous drug (cannabis) in excess of 500 grams (count 1), possessing things used in connection with producing a dangerous drug (count 2) and possessing a dangerous drug (cannabis) in excess of 500 grams (count 3). He was remanded in custody on 2 March 2023 and was sentenced by the learned sentencing judge on 13 March 2023 to imprisonment of two and one-half years for count 1, 18 months for count 2 and two years for count 3. The parole release date was fixed as 1 September 2023 after Mr Turner has served six months in custody. The sentencing judge indicated in the sentencing remarks that…

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 Turner

Details

AGLC: R v Turner [2023] QCA 108
Case: [2023] QCA 108
Decision Date: 26 May 2023

CaseChat Overview and Summary

In the case of R v Turner, the applicant, Turner, appealed against his sentence imposed by the District Court of Queensland. Turner had pleaded guilty to producing cannabis in excess of 500 grams, possessing things used in connection with producing a dangerous drug, and possessing cannabis in excess of 500 grams. The court sentenced Turner to two and a half years’ imprisonment for the first count, 18 months’ imprisonment for the second count, and two years’ imprisonment for the third count. Turner was required to serve six months in custody before being eligible for parole. Turner argued that the sentence was manifestly excessive due to his medical condition and the requirement to serve six months in custody.

The legal issue before the court was whether the sentence imposed was manifestly excessive or inadequate. Turner contended that the sentencing judge erred in finding that his medical condition could be appropriately managed in custody. Turner also submitted that the requirement to serve six months in custody exacerbated the sentence's severity. The court considered the evidence of Turner's medical condition and the capacity of Corrective Services to manage his health needs. The court found that Turner's medical condition could be managed in custody and that the requirement to serve six months in custody was not excessive.

In its decision, the court held that Turner's appeal against sentence was dismissed. The court found that Turner's medical condition could be managed in custody, and there was no error of fact by the sentencing judge in this regard. The court also found that the requirement to serve six months in custody was not manifestly excessive. The court noted that Turner's medical condition was chronic and ongoing, but it did not prevent him from carrying out his daily activities or require constant medical attention. The court also noted that Turner had a minor criminal history and had engaged with a counsellor for mental health support. The court concluded that the sentence imposed was appropriate and not manifestly excessive.

Orders

Orders of the court

Date of Order: 19 May 2023

Application for leave to appeal against sentence refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

During the year prior to the sentencing, Mr Turner engaged with a counsellor for mental health support. At the time of sentencing, Mr Turner’s chronic symptoms were daily aching, tenderness and stiffness in his lower back that could result in unsteadiness on his feet, intermittent and unpredictable sharp pain in his neck and upper back, patchy numbness in his left leg, ongoing urinary tract infections as a result of self-catheterisation four times daily, lack of bowel control and constant cramping and pain in the abdomen as a result of his bowel issues. He had been receiving medicinal cannabis for treatment of the ongoing pain since April 2020 and had a history of taking Lyrica for assistance with leg spasms.Evidence of Corrective Services’ capacity to manage Mr Turner’s health For the purpose of the hearing on 1 March 2023, Mr Turner’s solicitor had been unsuccessful in obtaining information from Corrective Services about the facilities and treatment that would be available to a prospective prisoner suffering from AVM. It was not surprising that the solicitor did not get a response from Corrective Services to a hypothetical question when Corrective Services had not assessed the prisoner. The sentencing hearing was adjourned until 2 March 2023 and Mr Turner’s bail extended to enable his solicitor to contact the person at the Maryborough Correctional Centre who had been identified as able to respond to the inquiries made on Mr Turner’s behalf about the prison’s facilities and treatment for a prisoner with AVM and for the prosecution also to make like inquiries of Corrective Services. At the resumed hearing on 2 March 2023, the prosecution tendered an information sheet from the Office for Prisoner Health and Wellbeing that dealt in general terms with the health services available to prisoners in correctional centres. An email was also tendered from the Director of that Office who had looked at the information provided about Mr Turner and stated that he could not “see any reason as to why his needs can’t be met in a correctional centre including Maryborough Correctional Centre”. The prosecutor was also informed by an officer from Corrective Services that Mr Turner would be assessed as part of the reception process at Maryborough Correctional Centre and that medication is managed by the Queensland Health team at the centre and administered as prescribed. The sentencing hearing was further adjourned on 2 March 2023, so that the question of whether or not Mr Turner would get appropriate medication in custody could be resolved and Mr Turner was remanded in custody on 2 March 2023. The sentencing was not completed until 13 March 2023 when affidavits were before the sentencing judge dealing with Mr Turner’s treatment whilst on remand and the capacity for Corrective Services to deal with his medical condition. An affidavit of Mr Turner’s solicitor sworn on 9 March 2023 was relied upon by Mr Turner and an affidavit of a legal support officer in the Office of the Director of Public Prosecutions sworn on 10 March 2023 was relied on by the respondent. The prosecutor accepted that Mr Turner’s time in custody would be more burdensome for Mr Turner and the issue for the sentencing judge was the extent of the moderation of the custodial component of the sentence.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Turner [2023] QCA 108
PARTIES:	R v TURNER, Luke (applicant)
FILE NO/S:	CA No 58 of 2023 DC No 151 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 13 March 2023 (Burnett DCJ)
DELIVERED ON:	Date of Order: 19 May 2023 Date of Publication of Reasons: 26 May 2023
DELIVERED AT:	Brisbane
HEARING DATE:	19 May 2023
JUDGES:	Mullins P and Morrison and Boddice JJA
ORDER:	Date of Order: 19 May 2023 Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to producing cannabis in excess of 500 grams (count 1), possessing things used in connection with producing a dangerous drug (count 2) and possessing cannabis in excess of 500 grams (count 3) – where the applicant was sentenced to two and one-half years’ imprisonment for count 1, 18 months’ imprisonment for count 2 and two years’ imprisonment for count 3 with a parole release date fixed after the applicant serves six months in custody – where the applicant was 36 years old and had a minor criminal history and a 2011 conviction for possession of cannabis with a circumstance of aggravation where the cannabis was for personal use – where the applicant with his sister and her partner as co-offenders grew cannabis plants for 20 months with the police seizing approximately 244 kgs of cannabis plants – where the police executed a search warrant at the applicant’s home where dried and drying cannabis weighing 47.5 kgs was located – where the applicant had suffered from a spinal cord injury since 2015 with neurological deficits and chronic symptoms – whether there was an error of fact by the sentencing judge that the applicant’s medical condition could be appropriately managed in custody – whether the sentence was manifestly excessive by reason of the requirement that the applicant serve six months in actual custody R v Hinton [2016] QCA 316, cited
COUNSEL:	A M Hoare for the applicant S J Muir for the respondent
SOLICITORS:	Suthers George for the applicant Director of Public Prosecutions (Queensland) for the respondent