R v Tytherleigh - [2006] QCA 193

SUPREME COURT OF QUEENSLAND

CITATION:

R v Tytherleigh [2006] QCA 193

PARTIES:

R
v
Mark TYTHERLEIGH
(applicant/appellant)

FILE NO/S:

CA No 15 of 2006
SC No 786 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

5 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

5 June 2006

JUDGES:

de Jersey CJ, Holmes JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Leave to appeal granted
2. Set aside sentence of two years imprisonment on count four and substitute sentence of 6 months imprisonment

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OTHER OFFENCES – where applicant sentenced to four and a half years imprisonment with a recommendation for eligibility for parole after 15 months for trafficking in methylamphetamine over a three month period and a term of two years imprisonment for one count of possession of heroin – where applicant was a heroin addict – where applicant had significant criminal history – where trafficking was large scale but ‘street-level’ – where amount of heroin was small – whether sentences were outside appropriate sentencing range

R v Bagnall [2005] QCA 20; CA No 10 of 2005, 11 February 2005, distinguished

R v Taylor [2005] QCA 379; CA No 192 of 2005, 14 October 2005, considered

COUNSEL:

A J Rafter SC for the applicant
B G Campbell for the respondent

SOLICITORS:

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

HOLMES J: The applicant for leave to appeal against sentence was sentenced to four and a half years' imprisonment with a recommendation for eligibility for parole after 15 months on one count of trafficking in methylamphetamine over a three-month period, and two years' imprisonment in respect of one count of possession of heroin. In respect of other counts which were subsumed in the trafficking - supply and possess methylamphetamine, possess things used in connection with trafficking and possess a sum of money obtained from trafficking - no further punishment was imposed.

The circumstances in which the applicant was apprehended were these: police saw him on 7 February 2005 walking with two other men and stopped the group for a search. They saw the applicant attempt to conceal a small orange container in a drink he was holding. Inside the container were three
clip-seal plastic bags which respectively contained 8.764 grams of powder which proved to be 1.545 grams of methylamphetamine pure; 0.456 grams of a crystal substance which contained a pure weight of heroin of 0.103 grams; and in the third bag, another amount of heroin, 0.188 grams gross which was 0.041 grams pure. The police also found in a bag that the applicant carried a mobile phone, a set of…

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 Tytherleigh

Details

AGLC: R v Tytherleigh [2006] QCA 193
Case: [2006] QCA 193
Decision Date: 5 June 2006

CaseChat Overview and Summary

The appellant was convicted of trafficking in methylamphetamine and possession of heroin. The appellant was sentenced to four and a half years imprisonment with a recommendation for eligibility for parole after 15 months for trafficking in methylamphetamine over a three-month period and a term of two years imprisonment for one count of possession of heroin. The appellant appealed against the sentence imposed on the ground that it was manifestly excessive. The appellant submitted that the sentences were outside the appropriate sentencing range and did not accord with the principle of proportionality.

The court considered the principles of sentencing and the appropriate range of sentences for the offences committed. The court considered the appellant’s significant criminal history, the large scale of the trafficking but noted that it was ‘street-level’, and the small amount of heroin involved. The court found that the sentence imposed for the trafficking offence was appropriate, but that the sentence imposed for the possession of heroin offence was excessive. The court found that the sentence for the possession of heroin offence was disproportionate to the offence committed and outside the appropriate sentencing range.

The appeal was allowed in part. The sentence of two years imprisonment on count four was set aside and a sentence of six months imprisonment was substituted. The sentence of four and a half years imprisonment with a recommendation for eligibility for parole after 15 months for trafficking in methylamphetamine over a three-month period was upheld.

Orders

Orders of the court

1. Leave to appeal granted

2. Set aside sentence of two years imprisonment on count four and substitute sentence of 6 months imprisonment

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 Tytherleigh [2006] QCA 193
PARTIES:	R v Mark TYTHERLEIGH (applicant/appellant)
FILE NO/S:	CA No 15 of 2006 SC No 786 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	5 June 2006
DELIVERED AT:	Brisbane
HEARING DATE:	5 June 2006
JUDGES:	de Jersey CJ, Holmes JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Leave to appeal granted 2. Set aside sentence of two years imprisonment on count four and substitute sentence of 6 months imprisonment
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OTHER OFFENCES – where applicant sentenced to four and a half years imprisonment with a recommendation for eligibility for parole after 15 months for trafficking in methylamphetamine over a three month period and a term of two years imprisonment for one count of possession of heroin – where applicant was a heroin addict – where applicant had significant criminal history – where trafficking was large scale but ‘street-level’ – where amount of heroin was small – whether sentences were outside appropriate sentencing range R v Bagnall [2005] QCA 20; CA No 10 of 2005, 11 February 2005, distinguished R v Taylor [2005] QCA 379; CA No 192 of 2005, 14 October 2005, considered
COUNSEL:	A J Rafter SC for the applicant B G Campbell for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent