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Kay v Tasmania

Kay v Tasmania

Case [2024] TASCCA 13 27 November 2024

Statutory Interpretation

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[2024] TASCCA 13

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	Kay v Tasmania [2024] TASCCA 13
PARTIES:	KAY, Joshua William
v
STATE OF TASMANIA
FILE NO:	2551/2024
DELIVERED ON:	27 November 2024
DELIVERED AT:	Hobart
HEARING DATE:	12 November 2024
JUDGMENT OF:	Pearce J, Marshall AJ, Porter AJ
CATCHWORDS:

Criminal Law – Appeal and New Trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Trafficking in methylamphetamine – In possession of 112.9 grams intending to sell most – Imprisonment for 2 years and 6 months with non-parole period of 1 year and 3 months not manifestly excessive.

Upston v Tasmania [2018] TASCCA 4; 30 Tas R 262, applied

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:

Appellant: K Baumeler
Respondent: L Pennington

Solicitors:

Respondent: Judgment Number: Number of paragraphs:	Director of Public Prosecutions
[2024] TASCCA 13
40

Serial No 2551/2024

File No 13/2024

JOSHUA WILLIAM KAY v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL PEARCE J MARSHALL AJ PORTER AJ 27 November 2024
Order of the Court:

1 Appeal dismissed.

Serial No 2551/2024

File No 13/2024

JOSHUA WILLIAM KAY v STATE OF TASMANIA

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL
PEARCE J
27 NOVEMBER 2024

1             The appellant pleaded guilty to two counts of trafficking in a controlled substance contrary to the Misuse of Drugs Act 2001, s 12(1). On 26 August 2024 he was sentenced by Martin AJ to imprisonment for two years and six months with eligibility to apply for parole after having served half of that term. This is an appeal against that sentence. The sole ground is that the sentence is manifestly excessive.
2             On 8 March 2023 the police executed a search warrant at the appellant's home in suburban Hobart. They found two safes in his bedroom. In one safe there were six snap lock bags containing a total of 112.9 grams of crystalline methylamphetamine, one snap lock bag containing 191 N, N- dimethylpentylone tablets with a total weight of 93.9 grams and $1,235 in cash. Three of the bags of methylamphetamine each contained about one ounce of the drug, approximately 27 grams, a quantity commonly purchased to on-sell to street level users. N, N-dimethylpentylone is a synthetic cathinone closely related to amphetamine, methylamphetamine and MDMA, used for its psychostimulant and hallucinogenic effects. In the other safe was $3,000 in cash in three $1,000 bundles secured with cable ties. The sentencing judge found, after hearing some evidence, that the cash was proceeds of the appellant's drug sales. Two digital scales and other snap lock bags were found nearby.
3             The appellant was sentenced on the basis that he possessed the methylamphetamine with the intention of selling it. Depending on the quantities in which it was sold it could have returned between $56,400 and $112,900. The sentencing judge accepted that the appellant would have used some of the drug himself. In contrast, the appellant trafficked…

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 Kay v Tasmania

Details

AGLC: Kay v Tasmania [2024] TASCCA 13
Case: [2024] TASCCA 13
Decision Date: 27 November 2024

CaseChat Overview and Summary

Kay appealed against a sentence imposed by the Supreme Court of Tasmania. The appellant had pleaded guilty to trafficking in methylamphetamine, having been found in possession of 112.9 grams of the drug with the intention to sell most of it. The sentencing judge imposed a term of imprisonment of 2 years and 6 months, with a non-parole period of 1 year and 3 months.

The appeal concerned whether the sentence imposed was manifestly excessive, thereby providing grounds for interference by the appellate court. The central legal issue was to assess the proportionality of the sentence given the objective seriousness of the trafficking offence and the subjective circumstances of the appellant.

The Full Court of the Supreme Court of Tasmania, constituted by Pearce J, Marshall and Porter AJJ, considered the sentencing principles applicable to drug trafficking offences. The court acknowledged the significant quantity of methylamphetamine involved and the clear intention to traffic. After reviewing the sentencing remarks of the trial judge and considering the relevant sentencing precedents, the Full Court concluded that the sentence was not demonstrably outside the range of appropriate sentences for such an offence. The court found no error in the sentencing judge's assessment of the objective gravity of the offending and the appellant's subjective circumstances.

Consequently, the appeal against sentence was dismissed.

Orders