R v Warren - [2014] QCA 175

SUPREME COURT OF QUEENSLAND

CITATION:

R v Warren [2014] QCA 175

PARTIES:

R
v
WARREN, Shane Matthew
(applicant)

FILE NO/S:

CA No 87 of 2014
SC No 69 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED EX TEMPORE ON:

25 July 2014

DELIVERED AT:

Brisbane

HEARING DATE:

25 July 2014

JUDGES:

Muir JA and Philip McMurdo and Peter Lyons JJ
Separate reasons for judgment of each member of the court, each concurring as to the order made

ORDER:

Application refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was found in possession of methylamphetamine – where the applicant was charged with possessing a dangerous drug in excess of two grams – where the applicant pleaded guilty – where the trial judge found the possession was not for a commercial purpose – where the applicant was sentenced to 18 months imprisonment with immediate parole – where the applicant contends that a term of imprisonment should not have been imposed – whether the sentencing judge erred in the exercise of sentencing discretion – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9(2)

R v Armstrong[2005] QCA 116, cited
R v Daly (2004) 147 A Crim R 440; [2004] QCA 385, cited
R v Woods[2004] QCA 204, cited

COUNSEL:

M J Byrne QC, with G T Hansen, for the applicant
B G Campbell for the respondent

SOLICITORS:

Lee Turnbull & Co for the applicant
Director of Public Prosecutions (Queensland) for the respondent

PHILIP McMURDO J: This is an application for leave to appeal a sentence of 18 months imprisonment with immediate parole for an offence of the unlawful possession of a quantity of methylamphetamine, with the circumstance that the quantity exceeded two grams. No time had been spent in pre-sentence custody. For the applicant, it is submitted that this sentence is manifestly excessive. The offence was committed in November 2012, when the applicant was then aged 42. He was sentenced in March this year when he was aged 44. He pleaded guilty, but there was a factual contest at his sentence hearing, which was whether any of the drug was in his possession for a commercial purpose.

The learned sentencing judge was not entirely impressed with the applicant’s evidence, but ultimately was unpersuaded that any of the drug was possessed other than for the applicant’s personal use. His Honour found that the applicant had a “significant and possibly not properly acknowledged problem with drugs” and did not accept the assurance made by the applicant’s counsel that the applicant was not continuing to use the drug.

The applicant had previous convictions for drug offences, but had never been sent to prison. He had used cannabis and amphetamines. The most recent of those offences prior to the present one was the possession of drugs, for which he was fined…

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 Warren

Details

AGLC: R v Warren [2014] QCA 175
Case: [2014] QCA 175
Decision Date: 25 July 2014

CaseChat Overview and Summary

The case of R v Warren involved the applicant who was found in possession of methylamphetamine and subsequently charged with possessing a dangerous drug in excess of two grams. The applicant pleaded guilty, and the trial judge determined that the possession was not for a commercial purpose. The applicant was sentenced to 18 months imprisonment with immediate parole. The applicant appealed against the sentence, contending that a term of imprisonment should not have been imposed and that the sentence was manifestly excessive.

The primary legal issues in this case were whether the sentencing judge had erred in exercising their discretion and whether the sentence was manifestly excessive. The applicant argued that the sentence was disproportionate to the offence and should not have included a term of imprisonment. The applicant further argued that the sentencing judge failed to consider all relevant factors, such as the applicant's personal circumstances and the potential for rehabilitation.

The court considered the arguments presented by the applicant and examined the sentencing principles relevant to the case. The court noted that the sentencing judge had carefully considered the applicant's personal circumstances and the nature of the offence before imposing the sentence. The court found that the sentence was within the range of appropriate penalties for the offence and that the sentencing judge had not erred in exercising their discretion. The court also held that the sentence was not manifestly excessive, taking into account the seriousness of the offence and the need for deterrence and denunciation.

The court dismissed the applicant's appeal and refused the application. The sentence of 18 months imprisonment with immediate parole was upheld.

Orders

Orders of the court

Application 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 Warren [2014] QCA 175
PARTIES:	R v WARREN, Shane Matthew (applicant)
FILE NO/S:	CA No 87 of 2014 SC No 69 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED EX TEMPORE ON:	25 July 2014
DELIVERED AT:	Brisbane
HEARING DATE:	25 July 2014
JUDGES:	Muir JA and Philip McMurdo and Peter Lyons JJ Separate reasons for judgment of each member of the court, each concurring as to the order made
ORDER:	Application refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was found in possession of methylamphetamine – where the applicant was charged with possessing a dangerous drug in excess of two grams – where the applicant pleaded guilty – where the trial judge found the possession was not for a commercial purpose – where the applicant was sentenced to 18 months imprisonment with immediate parole – where the applicant contends that a term of imprisonment should not have been imposed – whether the sentencing judge erred in the exercise of sentencing discretion – whether the sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 9(2) R v Armstrong[2005] QCA 116, cited R v Daly (2004) 147 A Crim R 440; [2004] QCA 385, cited R v Woods[2004] QCA 204, cited
COUNSEL:	M J Byrne QC, with G T Hansen, for the applicant B G Campbell for the respondent
SOLICITORS:	Lee Turnbull & Co for the applicant Director of Public Prosecutions (Queensland) for the respondent