R v Wynyard

[2004] QCA 431

SUPREME COURT OF QUEENSLAND

CITATION:

R v Wynyard [2004] QCA 431

PARTIES:

R
v
WYNYARD, Gregory John

(applicant)

FILE NO/S:

CA No 296 of 2004

SC No 205 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

12 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

12 November 2004

JUDGES:

McPherson and Jerrard JJA and Fryberg J

Separate reasons for judgment of each member of the Court, each concurring as to the order made.

ORDER:

Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – Appeal and new trial and inquiry after conviction – Appeal against sentence – Appeal by convicted persons – Applications to reduce sentence – When refused

R v Gasparini, unreported, Chesterman J, SC No 569 of 2003, 14 May 2004

COUNSEL:

The appellant appeared on his own behalf

R G Martin for the respondent

SOLICITORS:

The appellant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

FRYBERG J:  On 4th August this year Mr Wynyard was sentenced to imprisonment for two and a half years suspended after 12 months for an operational period of three years.  He now seeks leave to appeal against that sentence on the ground that it is manifestly excessive.

Mr Wynyard pleaded guilty to two counts of possessing dangerous drugs.  The offences occurred in December 2002.  On the second charge which related to a small quantity of cannabis sativa, a conviction was recorded but no further penalty imposed.  Unsurprisingly there is no appeal against that sentence and it is unnecessary to refer further to it.

The first count related to possession of 422 tablets containing MDMA the net weight of which exceeded 30 grams.  The tablets were found in a rubbish bin in the kitchen when police executed a search warrant at Mr Wynyard's unit at Main Beach.  Mr Wynyard told police that he found them when his cat was digging a hole in the front garden the previous night.  No scales, customer lists, other plastic bags or large amounts of cash were found.

Mr Wynyard was charged and released on bail.  In due course committal proceedings were held and an indictment was presented in this Court on 23 April this year.  It does not appear precisely when Mr Wynyard communicated his intention to plead guilty but it was not suggested that it was an early plea.

Mr Wynyard gave evidence before the sentencing Judge.  He then admitted, apparently for the first time, that what he told the police was false.  He claimed that the true position was that he had purchased the tablets from a man named "John".  He said that he met John while playing poker machines at Southport Surf Lifesaving Club.  John gave him one ecstasy tablet because of his depression.  That led to a small number of purchases in quantities of one or two, for each of which he paid $30.

One evening John said he had to travel interstate and he…