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R v Willoughby

R v Willoughby

Case [2009] QCA 105 28 April 2009

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Willoughby [2009] QCA 105

PARTIES:

R
v
WILLOUGHBY, Brendan James
(applicant)

FILE NO:

CA No 206 of 2008
SC No 545 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

12 February 2009

JUDGES:

Chief Justice, Chesterman JA and Atkinson J
Separate reasons for judgment of each member of the Court, the Chief Justice and Chesterman JA concurring as to the order made, Atkinson J dissenting

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – applicant pleaded guilty to five offences against the Drugs Misuse Act 1986 – most serious offence was that of trafficking a dangerous drug, namely MDMA – sentenced to 10 years imprisonment – whether sentence was manifestly excessive when compared to similar cases

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where applicant was apprehended with a number of other co-offenders during an operation by the National Crime Authority – whether sentence was comparable to that of the other co-offenders

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – RESPONSE TO CHARGES – DELAY BETWEEN OFFENCE AND SENTENCE – where delay between offence and sentence was approximately six years – where applicant had demonstrated rehabilitation – whether sentencing judge gave adequate consideration to issues of delay and rehabilitation

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – RESPONSE TO CHARGES – PLEA OF GUILTY – where applicant pleaded guilty to all charges on the indictment – avoided the need for lengthy trial – whether sentencing judge gave adequate consideration to plea of guilty

Drugs Misuse Act 1986 (Qld), s 5, s 13
Penalties and Sentences Act 1992 (Qld), s 161A, s 161B, s 161B(2)

R v Bradforth[2003] QCA 183
R v Cockerell (2001) 126 A Crim R 444; [2001] VSCA 239
R v D’Arcy (2001) 122 A Crim R 268; [2001] QCA 325
R v Donnelly and Corbic[2007] QCA 77
R v Elizalde[2006] QCA 330
R v Klasan[2007] QCA 268
R v L; ex parte Attorney-General [1996] 2 Qd R 63; [1995] QCA 444
R v Nabhan; R v Kostopoulos[2007] QCA 266
R v Rizk[2004] QCA 382
R v Rizk & Raciti[2004] QCA 359
R v Saunders[2007] QCA 93
R v Tiburcy, Gardner and Zeuschner (2006) 166 A Crim R 291; [2006] VSCA 244
R v Tilley; ex parte A-G[1999] QCA 424
Vartzokas v Zanker (1989) 51 SASR 277

COUNSEL:

B W Farr for the applicant
M B Lehane for the respondent

SOLICITORS:

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

CHIEF JUSTICE:I have had the advantage of reading the reasons for judgment of Chesterman JA. I agree that the application should be…

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 Willoughby

Details

AGLC: R v Willoughby [2009] QCA 105
Case: [2009] QCA 105
Decision Date: 28 April 2009

CaseChat Overview and Summary

The case of R v Willoughby involves the applicant, who pleaded guilty to five offences under the Drugs Misuse Act 1986. The most serious charge was trafficking a dangerous drug, namely MDMA. The applicant was sentenced to 10 years imprisonment. The applicant appealed against the sentence, contending that it was manifestly excessive and not comparable to sentences imposed on co-offenders in similar circumstances.

The legal issues before the court were whether the sentence imposed was manifestly excessive, considering the nature of the offences and comparable cases, and whether the sentence was appropriately aligned with those of co-offenders. Additionally, the court considered whether the sentencing judge adequately took into account the delay between the commission of the offences and the sentence, the applicant's rehabilitation efforts, and the plea of guilty.

The court found that the sentence was not manifestly excessive, taking into account the seriousness of the offences and the need for deterrence and denunciation. The court also determined that the sentence was comparable to those of co-offenders, considering the roles and involvement of each participant in the trafficking operation. Furthermore, the court held that the sentencing judge had appropriately weighed the factors of delay, rehabilitation, and the plea of guilty in reaching the sentence.

The application for leave to appeal against the sentence was refused.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Willoughby [2009] QCA 105

Most Recent Citation

R v Soliman [2020] VCC 1898

Cases citing this decision · 8 of 8 shown

R v Soliman
[2020] VCC 1898

…4 (Cth), 16A, 16A(ja) – R v Pham (2015) 256 CLR 550 – Kovacevic v Mills (2000) 76 SASR 404 – R v Willoughby [2009] QCA 105, applied ---…
R v Dang
[2018] QCA 331 Para 14

…7] and R v Markovski .[8] [2](2011) 244 CLR 462; [2011] HCA 49. [3][2015] QCA 248. [4][2009] QCA 376. [5][2006] QCA 174. [6][2014] QCA 79. [7][2009] QCA 105. [8][2009] QCA 299.…
R v Bull
[2017] QCA 293 Para 48

…[5] See, for example, R v Tilley; Ex parte Attorney-General [1999] QCA 424; R v Willoughby [2009] QCA 105 at [48].…
R v Saggers
[2016] QCA 344 Para 3

…ere the offender not responsible for the delay.[10] [9]See, for example, R v Tilley; ex parte Attorney General [1999] QCA 424, R v Willoughby [2009] QCA 105, [48]. [10] R v Alt (2013) 236 A Crim R 486, 497.…
R v Fitzgerald
[2015] QCA 93 Para 14

…m the delay in proceeding to sentence, because was solely due to Mr Fitzgerald’s absconding. R v Willoughby [1] was relied upon. [1] R v Willoughby [2009] QCA 105 at [45] and [48].…
R v Honeysett; ex parte
[2010] QCA 212 Para 87

…[3]Quoted in R v Willoughby [2009] QCA 105 at [87].…
R v Newton
[2010] QCA 101 Para 1

…n an endeavour to find true consistency in sentencing is unattainable, as I pointed out (with the agreement of the Chief Justice) in R v Willoughby [2009] QCA 105 at [31]. There are always differences between offence and offender so that a precise comparison is impossible. What is possible is an examination of ca…
R v Broad and Prior
[2010] QCA 53 Para 1

…would serve, as they did, to reduce his sentence and which are absent in Broad’s case. As well as that there is the point made in R v Willoughby [2009] QCA 105:…

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Cases cited in this decision · 16 of 16 shown

R v Raciti
[2004] QCA 359 Para 1

…d.”[1] His appeal against sentence for trafficking in these Schedule 1 and Schedule 2 drugs over a four month period was unsuccessful. [1] Raciti [2004] QCA 359 at 8.…
R v Klasan
[2007] QCA 268 Para 1

…ch. It is, in my respectful opinion, salutary to bear in mind the remarks of the Chief Justice (with whom Jerrard and Keane JJA agreed) in R v Klasan [2007] QCA 268 at [34]:…
R v. Nabhan ; R v Kostopoulos
[2007] QCA 266 Para 1

…ly by profit. The applications for leave to appeal against sentence of Nabhan and Kostopoulos were heard together in R v Nabhan ; R v Kostopoulos [2007] QCA 266. Both applications were unsuccessful.…
R v Saunders
[2007] QCA 93 Para 1

…An example of that sentencing range was found in the recent Court of Appeal decision of R v Saunders [2007] QCA 93. The applicant trafficked in MDMA and methylamphetamine for a period of six months at a time when they were both Schedule 2 drugs. He was a man in his late 30s who had a number of convictions inters…
R v. Donnelly and Corbic
[2007] QCA 77 Para 1

…In R v Donnelly and Corbic [2007] QCA 77 Jerrard JA considered that it was relevant that the applicants who both pleaded guilty to trafficking in the dangerous drug MDMA and trafficking in the dangerous drug ephedrine for a period of more than two years had been on bail for nearly three and a half years and neit…
R v O'Brien
[2006] QCA 482

…· R v O'Brien [2006] QCA 482;…
R v Tiburcy
[2006] VSCA 244 Para 1

…example of the effect of rehabilitation by an offender between the offending and the time of sentence is found in R v Tiburcy, Gardner and Zeuschner [2006] VSCA 244; (2006) 166 A Crim R 291 where the Court of Appeal in Victoria considered the effect on sentence of a delay of three years between arrest and sentenc…
R v Elizalde
[2006] QCA 330 Para 1

…upon as comparable are not so in fact. Atkinson J has concluded that the applicant’s criminal misconduct was less serious than that in R v Elizalde [2006] QCA 330. The conclusion may be justified by reference to the reasons for judgment, but the fact is that Elizalde (whom I sentenced) was engaged in less extensi…
R v Rizk
[2004] QCA 382 Para 1

…In R v Rizk [2004] QCA 382, the Court of Appeal referred to the usual sentencing range for “large scale trafficking” in Schedule 1 and Schedule 2 drugs as being 10 to 12 years imprisonment and when it was confined to Schedule 2 drugs, eight to 10 years imprisonment.[2] As Rizk was a relatively young man who was a…
R v P
[2004] QCA 365

…· R v P [2004] QCA 365;…
R v Bradforth
[2003] QCA 183 Para 1

…In passing sentence the learned primary judge referred to the judgment of Muir J (with whom Williams and Jerrard JJA agreed) in R v Bradforth [2003] QCA 183 at [29]:…
R v Cockerell
[2001] VSCA 239

…s 161A, s 161B, s 161B(2) R v Bradforth [2003] QCA 183 R v Cockerell (2001) 126 A Crim R 444; [2001] VSCA 239 R v D’Arcy (2001) 122 A Crim R 268; [2001] QCA 325 R v Donnelly and Corbic [2007] QCA 77 R v Elizalde [2006] QCA 330 R v Klasan [2007] QCA 268 R v L; ex parte Attorney-General [1996] 2 Qd R 63; [1995] QCA…
R v D'Arcy
[2001] QCA 325 Para 1

…In R v D’Arcy [2001] QCA 325, rehabilitation was regarded as relevant to the sentence imposed even where the offender did not show remorse. Chesterman J observed of an offender who was sentenced many years after his offending behaviour at [170]:…
R v Tilley; ex parte A-G
[1999] QCA 424 Para 1

…ary aspects of sentencing for such offences are punishment and deterrence, or denunciation and deterrence, as was noted in R v Tilley; ex parte A-G [1999] QCA 424, before going on to state that:…
R v L; ex parte Attorney-General
[1995] QCA 444

…[2006] QCA 330 R v Klasan [2007] QCA 268 R v L; ex parte Attorney-General [1996] 2 Qd R 63; [1995] QCA 444 R v Nabhan ; R v Kostopoulos [2007] QCA 266 R v Rizk [2004] QCA 382 R v Rizk & Raciti [2004] QCA 359 R v Saunders [2007] QCA 93 R v Tiburcy, Gardner and Zeuschner (2006) 166 A Crim R 291; [2006] VSCA 244 R v…
Mill v The Queen
[1988] HCA 70 Para 1

…amples of support for that proposition in the Supreme Court of New South Wales, in Todd [1982] 2 NSWLR 517 at 519, 520; in the High Court in R v Mill (1988) 166 CLR 59 at 64; in the Court of Criminal Appeal in Victoria in Quinlivin (Court of Criminal Appeal in Victoria No. 291 of 1994) in the Court of Criminal Appea…

Legislation cited in this decision · 2

Drugs Misuse Act 1986 (Qld)
5 2 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
161A 2 mentions (from Para 1)

CITATION:	R v Willoughby [2009] QCA 105
PARTIES:	R v WILLOUGHBY, Brendan James (applicant)
FILE NO:	CA No 206 of 2008 SC No 545 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	28 April 2009
DELIVERED AT:	Brisbane
HEARING DATE:	12 February 2009
JUDGES:	Chief Justice, Chesterman JA and Atkinson J Separate reasons for judgment of each member of the Court, the Chief Justice and Chesterman JA concurring as to the order made, Atkinson J dissenting
ORDER:	The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – applicant pleaded guilty to five offences against the Drugs Misuse Act 1986 – most serious offence was that of trafficking a dangerous drug, namely MDMA – sentenced to 10 years imprisonment – whether sentence was manifestly excessive when compared to similar cases CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where applicant was apprehended with a number of other co-offenders during an operation by the National Crime Authority – whether sentence was comparable to that of the other co-offenders CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – RESPONSE TO CHARGES – DELAY BETWEEN OFFENCE AND SENTENCE – where delay between offence and sentence was approximately six years – where applicant had demonstrated rehabilitation – whether sentencing judge gave adequate consideration to issues of delay and rehabilitation CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – RESPONSE TO CHARGES – PLEA OF GUILTY – where applicant pleaded guilty to all charges on the indictment – avoided the need for lengthy trial – whether sentencing judge gave adequate consideration to plea of guilty Drugs Misuse Act 1986 (Qld), s 5, s 13 Penalties and Sentences Act 1992 (Qld), s 161A, s 161B, s 161B(2) R v Bradforth[2003] QCA 183 R v Cockerell (2001) 126 A Crim R 444; [2001] VSCA 239 R v D’Arcy (2001) 122 A Crim R 268; [2001] QCA 325 R v Donnelly and Corbic[2007] QCA 77 R v Elizalde[2006] QCA 330 R v Klasan[2007] QCA 268 R v L; ex parte Attorney-General [1996] 2 Qd R 63; [1995] QCA 444 R v Nabhan; R v Kostopoulos[2007] QCA 266 R v Rizk[2004] QCA 382 R v Rizk & Raciti[2004] QCA 359 R v Saunders[2007] QCA 93 R v Tiburcy, Gardner and Zeuschner (2006) 166 A Crim R 291; [2006] VSCA 244 R v Tilley; ex parte A-G[1999] QCA 424 Vartzokas v Zanker (1989) 51 SASR 277
COUNSEL:	B W Farr for the applicant M B Lehane for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent