R v Westphal

[2009] QCA 223

SUPREME COURT OF QUEENSLAND

CITATION:

R v Westphal [2009] QCA 223

PARTIES:

R
v
WESTPHAL, Ed
(applicant/appellant)

FILE NO/S:

CA No 300 of 2007
SC No 848 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Maryborough

DELIVERED ON:

4 August 2009

DELIVERED AT:

Brisbane

HEARING DATE:

28 May 2009

JUDGES:

Holmes JA, McMurdo and Applegarth JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Application for leave to appeal against sentence granted;

2.   Appeal allowed;

3.   Sentence on count 1 set aside;

4.   Sentence of nine years imprisonment, with a parole eligibility date fixed at 12 September 2013, substituted.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – POWERS OF APPELLATE COURT – TO ADMIT NEW EVIDENCE – where applicant pleaded guilty to two counts of trafficking in methylamphetamine, one count of possessing methylamphetamine simpliciter, one count of possessing methylamphetamine in excess of two grams, and two counts of possessing cannabis sativa – where applicant sentenced to 10 years imprisonment on the first count of trafficking, with a serious violent offence declaration; five years imprisonment on the second trafficking count; three years imprisonment for the possession with a circumstance of aggravation; and six months imprisonment on the remaining possession counts; all terms of imprisonment to be served concurrently – where applicant appealed against his sentence on the basis of information not adduced at sentence, including evidence of applicant’s giving assistance to police as a registered informant – where applicant sought to adduce further evidence on appeal – where that evidence was not fresh evidence – whether Court should admit further evidence – whether, applying R v Maniadis, its admission would show some other sentence warranted – whether miscarriage of justice would result if evidence not admitted

R v Bradforth[2003] QCA 183, cited
R v Coleman[2006] QCA 442, cited
R v Johnson [2007] QCA 433, distinguished
R v Kashton [2005] QCA 70, cited
R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, applied
R v Taylor [2006] QCA 459, cited
R v Webber (2000) 114 A Crim R 381; [2000] QCA 316, cited

COUNSEL:

D Locantro (sol) for the applicant/appellant
P F Rutledge for the respondent

SOLICITORS:

Locantro Lawyers for the applicant/appellant
Director of Public Prosecutions (Qld) for the respondent

1. :HOLMES JA  On 17 October 2007, the applicant pleaded guilty to two counts of trafficking in methylamphetamine, two counts of possessing methylamphetamine (one count possession simpliciter, and the other with a circumstance of aggravation, that the quantity exceeded two grams), and two counts of possessing cannabis sativa.  He was subsequently sentenced to 10 years imprisonment in respect of the first count of trafficking, which was said to have occurred between 31 May 2003 and 14 August 2004; five years imprisonment in respect of the second trafficking count, between 13 January 2005 and 13 February 2005;…