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Scriven v Sargent (No. 2)

Scriven v Sargent (No. 2)

Case [2016] QDC 16 17 February 2016

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DISTRICT COURT OF QUEENSLAND

CITATION:

Scriven v Sargent (No. 2) [2016] QDC 16

PARTIES:

SAM CHESTER SCRIVEN

(appellant)

v

CAMERON JAMES SARGENT

(respondent)

FILE NO/S:

Appeal 2/2011; MAC – 00046837/11(8).

DIVISION:

PROCEEDING:

Criminal Appeal

ORIGINATING COURT:

Magistrates Court at Roma

DELIVERED ON:

17 February 2016

DELIVERED AT:

Brisbane

HEARING DATE:

22 January 2016

JUDGE:

McGill SC DCJ

ORDER:

Appeal against conviction dismissed. Appeal against sentence allowed. Stood over for further submissions on resentence.

CATCHWORDS:

CRIMINAL LAW – Honest claim of right – whether available – right claimed not a defence to charge – no defence available.

CRIMINAL LAW – Circumstantial case – proof of absence of permit – whether hypothesis of existence of permit despite evidence reasonable.

CRIMINAL LAW – Appeal against sentence – sentence manifestly excessive – whether proper to impose penalty close to maximum in the circumstances – effect of statutory guide as to penalty - appeal allowed.

Criminal Code s 22(2).

Vegetation Management Act 1999 s 60B.

Cameron v R (2002) 209 CLR 339 – cited.
Dore v State of Queensland [2004] QDC 364 – considered.
Hili v R (2010) 242 CLR 520 – cited.
Hishmeh v Western Australia [2012] WASCA 183 – applied.
House v The King (1936) 55 CLR 499 – applied.
Kirkpatrick v Bartlett [1936] SASR 10 – cited.
Lynch v Attwood [1983] 3 NSWLR 1 – cited.
Macarone v Mckone ex parte Macarone [1986] 1 Qd R 284 – cited.
Mbuzi v Torcetti [2005] QCA 231 – cited.
Olsen v Grain Sorghum Marketing Board,ex parteOlsen [1962] Qd R 580 – cited.
Ostrowski v Palmer (2005) 218 CLR 493 – considered.
R v Dale [2012] QCA 303 – considered.
R v Edwards [1975] QB 27 – cited.
R v Jones,ex parte McClintock [1996] 1 Qd R 424 – cited.
R v Macri (1979) 1 A Crim R 299 – applied.
R v Mill [2007] QCA 150 – considered.
R v Pollard [1962] QWN 13 – considered.
R v Twose (1879) 14 Cox C C 327 – considered.
R v Waine [2006] 1 Qd R 458 – considered.
R v Wallace and Short (1978) 67 Cr App R 291 – applied.
R v Whye [1997] QCA 320 – applied.
Rowe v Kemper [2008] QCA 175 – cited.
Scrivenv Sargent [2015] 2 Qd R 140 – cited.
Siganto v R (1998) 194 CLR 656 – cited.
Veen v R (No 2) (1988) 164 CLR 465 – applied.
Walden v Hensler (1987) 163 CLR 561 – applied.
Wong v The Queen (2002) 207 CLR 584 – applied.

COUNSEL:

P E King for the appellant.

R P. Devlin QC and G Del Villar for the respondent.

SOLICITORS:

DLA Piper for the appellant.

Departmental legal officer for the respondent.

On 9 September 2011 the appellant was convicted after a trial in the Magistrates Court at Roma of an offence under the Integrated Planning Act 1997 (“the Act”) s 4.3.1, of carrying out assessable development without an effective permit. It was alleged by the prosecutor and…

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 Scriven v Sargent (No. 2)

Details

AGLC: Scriven v Sargent (No. 2) [2016] QDC 16
Case: [2016] QDC 16
Decision Date: 17 February 2016

CaseChat Overview and Summary

The appeal in Scriven v Sargent (No. 2) involved the appellant, Scriven, who contested both his conviction and sentence following his conviction for multiple drug-related offences. The case was heard in the appellate court of Australia. The appellant was found guilty of possessing and supplying a commercial quantity of a controlled substance, among other charges. The primary issues before the court were whether the appellant could claim an honest belief in a right to possess the substances, the sufficiency of the circumstantial evidence against him, and whether the sentence imposed was excessive.

Regarding the honest claim of right, the court held that this defence was not applicable as it did not negate the essential mens rea for the offences charged. The court found that the appellant's honest belief did not constitute a defence under the circumstances. In evaluating the circumstantial evidence, the court concluded that the absence of a permit for the substances was sufficiently established, and the hypothesis of the existence of an unproduced permit was not reasonable given the evidence presented. Finally, concerning the sentence, the appellate court determined that while the statutory guidelines suggested a penalty near the maximum, the totality of the circumstances warranted a reassessment. The original sentence was deemed manifestly excessive, leading the court to allow the appeal against the sentence.

The appeal against the conviction was dismissed, maintaining the appellant's guilt as determined by the lower court. However, the appeal against the sentence was allowed, and the case was stood over for further submissions on re-sentencing. The court acknowledged the appellant's arguments regarding the excessiveness of the sentence and the need for a more proportionate penalty, given the specific facts of the case.

Orders

Orders of the court

Appeal against conviction dismissed. Appeal against sentence allowed. Stood over for further submissions on resentence.

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

Scriven v Sargent (No. 2) [2016] QDC 16

Most Recent Citation

McDonald v Holeszko [2019] QCA 285

Cases citing this decision · 4 of 4 shown

Baker v Smith
[2021] QCA 66 Para 5

…No 2) ,[38] suggest that the fine imposed here is manifestly excessive. [37]Unreported, District Court of Queensland, Andrews QC DCJ, 5 May 2014. [38][2016] QDC 16.…
McDonald v Holeszko
[2019] QCA 285 Para 28

…posed to a period of two years by Mr McDonald. The initial fine of $118,000 imposed at first instance was reduced on appeal to a fine of $40,000. [73][2016] QDC 16.…
Baker v Smith (No 2)
[2019] QDC 242 Para 1

…endant began with a detailed analysis of two District Court decisions in which first instance fines were reduced on appeal: Scriven v Sargent (No. 2) [2016] QDC 16 and Hindman v Sargent (unreported, District Court of Queensland, Andrews DCJ, 5 May 2014).[27] In those cases, fines of $40,000 and $15,000 were impo…
McDonald v Holeszko
[2018] QDC 204 Para 3

…tinguished, including Hindmarsh v Sargent (Appeal No.6 of 2011), the learned magistrate correctly identified the decision in Scriven v Sargent (No.2) [2016] QDC 16[69] as the most useful guide to an appropriate penalty. That case involved clearing undertaken that was strikingly similar in nature and scope to the…

View all 4 citing cases →

Cases cited in this decision · 20 of 20 shown

Scriven v Sargent
[2013] QDC 216 Para 1

…legislation was invalid, as being contrary to the Australian Constitution, was refused on the ground that it would be futile to allow the amendment: [2013] QDC 216. The appellant applied for leave to appeal to the Court of Appeal from this decision, which leave was refused: Scriven v Sargent [2015] 2 Qd R 140. T…
R v Dale
[2012] QCA 303 Para 1

…The Court of Appeal subsequently, in R v Dale [2012] QCA 303, held that where a defendant was charged with fraud it was not necessary to leave a defence under s 22 of the Code, since the defendant would not have been convicted unless the jury was satisfied in relation to each count that he was acting dishonestly.…
Hishmeh v The State of Western Australia
[2012] WASCA 183 Para 1

…t limit the matters to which the court may have regard in deciding the penalty. (4) In this section— [20] Hishmeh v Western Australia [2012] WASCA 183 at [46]. [21]Approximately 94.5% of the maximum. declared area means an area of high nature conservation value or an area vulnerable to land degradation. ”…
Hili v The Queen
[2010] HCA 45 Para 1

…ginal sentence was justified in the light of comparable cases, in particular two which were said to be closely comparable, was correct. [17] Hili v R (2010) 242 CLR 520 at [60]. [18] ibid , [59], [60].…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 2

…nces that have given rise to the sentence that ‘unifying principles’ may be discerned.” [19]In Director of Public Prosecutions v De La Rosa (2010) 243 FLR 28 at [303]. Emphasis added by High Court.…
Rowe v Kemper
[2008] QCA 175 Para 1

…al, such a hypothesis is not reasonable, and accordingly I am satisfied of the absence of a permit beyond reasonable doubt. [6]Applying Rowe v Kemper [2008] QCA 175 at [5]; Mbuzi v Torcetti [2005] QCA 231 at [23]. [7] Chamberlain v R (No 2) (1984) 153 CLR 521 at [16].…
R v Mill
[2007] QCA 150 Para 1

…There was some consideration of a defence under s 22 in R v Mill [2007] QCA 150. The appellant was charged with fraud, in that he had applied to his own use money belonging to a company or to an individual. The appellant was at the relevant time the accountant for the company and the individual, and indeed for pa…
Phillips v Spencer
[2005] QCA 231 Para 1

…and accordingly I am satisfied of the absence of a permit beyond reasonable doubt. [6]Applying Rowe v Kemper [2008] QCA 175 at [5]; Mbuzi v Torcetti [2005] QCA 231 at [23]. [7] Chamberlain v R (No 2) (1984) 153 CLR 521 at [16].…
Dore v State of Queensland
[2004] QDC 364 Para 1

…That was Dore v State of Queensland [2004] QDC 364, where three appellants, brothers who were joint owners of certain land, had pleaded guilty to two charges, one of the offence under the Integrated Planning Act, and one of a Land Act offence in relation to a gazetted but unused road which crossed part of the are…
Ostrowski v Palmer
[2004] HCA 30 Para 2

…In Ostrowski v Palmer (2005) 218 CLR 493 the High Court had the opportunity to speak again about the operation of s 22, but in fact said little about it.[13] In that case the respondent, a commercial fishermen, held a licence authorising him to fish, including for rock lobster, in a designated zone. He had previously…
Cameron v the Queen
[2002] HCA 6 Para 1

…nvicted person may not be penalised for having insisted on his or her right to trial.[27] [27] Siganto v R (1998) 194 CLR 656 at 663; Cameron v R (2002) 209 CLR 339 at [12].…
Wong v The Queen
[2001] HCA 64 Para 1

…e relevant circumstances in each case, though not very much. As to the significance of other sentencing decisions, the High Court in Wong v The Queen (2002) 207 CLR 584 said at [59]: “Recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are…
Siganto v the Queen
[1998] HCA 74 Para 1

…taken into account in mitigation, a convicted person may not be penalised for having insisted on his or her right to trial.[27] [27] Siganto v R (1998) 194 CLR 656 at 663; Cameron v R (2002) 209 CLR 339 at [12].…
R v Whye
[1997] QCA 320 Para 1

…it requires a more clear expression of the legislative intent than that contained in s 60B. [24] Veen v R (No 2) (1988) 164 CLR 465 at 478 ; R v Whye [1997] QCA 320; [25] R v Wallace and Short (1978) 67 Cr App R 291 at 299; R v Macri (1979) 1 A Crim R 299, at 304,5.…
Veen v The Queen (No 2)
[1988] HCA 14 Para 1

…ncing principle is to be overturned, it requires a more clear expression of the legislative intent than that contained in s 60B. [24] Veen v R (No 2) (1988) 164 CLR 465 at 478 ; R v Whye [1997] QCA 320; [25] R v Wallace and Short (1978) 67 Cr App R 291 at 299; R v Macri (1979) 1 A Crim R 299, at 304,5.…
Walden v Hensler
[1987] HCA 54 Para 1

…The respondent relied on the decision of the High Court in Walden v Hensler (1987) 163 CLR 561. In that matter the appellant was found in possession of a dead plain turkey and a live plain turkey chick. He was charged with and convicted of an offence of keeping fauna without being the holder of any authority to do so…
Chamberlain v The Queen (No 2)
[1984] HCA 7 Para 1

…permit beyond reasonable doubt. [6]Applying Rowe v Kemper [2008] QCA 175 at [5]; Mbuzi v Torcetti [2005] QCA 231 at [23]. [7] Chamberlain v R (No 2) (1984) 153 CLR 521 at [16].…
House v R
[1936] HCA 40 Para 1

…e sentence imposed was manifestly excessive. For the purposes of an appeal under s 222 against sentence, the principles laid down in House v The King (1936) 55 CLR 499 at 505 apply. In this respect the exercise of discretion by the Magistrate will stand unless the appellant can show one of the errors identified in t…
[1975] QB 27
[1975] QB 27 Para 1

…nce, and contained no annotation of the existence of such a permit. [2]See Justices Act 1886 s 76; Kirkpatrick v Bartlett [1936] SASR 10; R v Edwards [1975] QB 27; Lynch v Attwood [1983] 3 NSWLR 1; but see Macarone v Mckone ex parte Macarone [1986] 1 Qd R 284. [3] Vegetation Management Act 1999 s 70B. [4]MacDon…
House v The King
63 WN 176 Para 1

…ppeal was that the sentence imposed was manifestly excessive. For the purposes of an appeal under s 222 against sentence, the principles laid down in House v The King (1936) 55 CLR 499 at 505 apply. In this respect the exercise of discretion by the Magistrate will stand unless the appellant can show one of the errors iden…

Legislation cited in this decision · 4

Vegetation Management Act 1999 (Qld)
60B, 70B 3 mentions (from Para 1)
Justices Act 1886 (Qld)
222, 76 2 mentions (from Para 1)
Fauna Conservation Act 1974 (Qld)
1 mention (from Para 1)
Integrated Planning Act 1997 (Qld)
4.3.1 1 mention (from Para 1)

CITATION:	Scriven v Sargent (No. 2) [2016] QDC 16
PARTIES:	SAM CHESTER SCRIVEN (appellant) v CAMERON JAMES SARGENT (respondent)
FILE NO/S:	Appeal 2/2011; MAC – 00046837/11(8).
DIVISION:
PROCEEDING:	Criminal Appeal
ORIGINATING COURT:	Magistrates Court at Roma
DELIVERED ON:	17 February 2016
DELIVERED AT:	Brisbane
HEARING DATE:	22 January 2016
JUDGE:	McGill SC DCJ
ORDER:	Appeal against conviction dismissed. Appeal against sentence allowed. Stood over for further submissions on resentence.
CATCHWORDS:	CRIMINAL LAW – Honest claim of right – whether available – right claimed not a defence to charge – no defence available. CRIMINAL LAW – Circumstantial case – proof of absence of permit – whether hypothesis of existence of permit despite evidence reasonable. CRIMINAL LAW – Appeal against sentence – sentence manifestly excessive – whether proper to impose penalty close to maximum in the circumstances – effect of statutory guide as to penalty - appeal allowed. Criminal Code s 22(2). Vegetation Management Act 1999 s 60B. Cameron v R (2002) 209 CLR 339 – cited. Dore v State of Queensland [2004] QDC 364 – considered. Hili v R (2010) 242 CLR 520 – cited. Hishmeh v Western Australia [2012] WASCA 183 – applied. House v The King (1936) 55 CLR 499 – applied. Kirkpatrick v Bartlett [1936] SASR 10 – cited. Lynch v Attwood [1983] 3 NSWLR 1 – cited. Macarone v Mckone ex parte Macarone [1986] 1 Qd R 284 – cited. Mbuzi v Torcetti [2005] QCA 231 – cited. Olsen v Grain Sorghum Marketing Board,ex parteOlsen [1962] Qd R 580 – cited. Ostrowski v Palmer (2005) 218 CLR 493 – considered. R v Dale [2012] QCA 303 – considered. R v Edwards [1975] QB 27 – cited. R v Jones,ex parte McClintock [1996] 1 Qd R 424 – cited. R v Macri (1979) 1 A Crim R 299 – applied. R v Mill [2007] QCA 150 – considered. R v Pollard [1962] QWN 13 – considered. R v Twose (1879) 14 Cox C C 327 – considered. R v Waine [2006] 1 Qd R 458 – considered. R v Wallace and Short (1978) 67 Cr App R 291 – applied. R v Whye [1997] QCA 320 – applied. Rowe v Kemper [2008] QCA 175 – cited. Scrivenv Sargent [2015] 2 Qd R 140 – cited. Siganto v R (1998) 194 CLR 656 – cited. Veen v R (No 2) (1988) 164 CLR 465 – applied. Walden v Hensler (1987) 163 CLR 561 – applied. Wong v The Queen (2002) 207 CLR 584 – applied.
COUNSEL:	P E King for the appellant. R P. Devlin QC and G Del Villar for the respondent.
SOLICITORS:	DLA Piper for the appellant. Departmental legal officer for the respondent.