BOWSKILL J: The applicant applies for leave to appeal against the sentence which was imposed on him on 3 April 2019, of 10 years imprisonment for the offence of trafficking in dangerous drugs. He was convicted of that offence on his plea of guilty, as well as of a further 16 offences on the indictment, comprising drug-related offences as well as weapon offences, and four summary charges. He contends the sentence imposed was manifestly excessive because the sentence does not give adequate weight to the mitigating factors, in particular, his timely plea of guilty and the totality issues that arise because of the time he served in prison, under an earlier sentence of imprisonment for other drug offending, prior to this sentence for trafficking.

The applicant does not contend the learned sentencing judge made any error of principle, rather, that her Honour failed to give sufficient weight to the particular factor of this so‑called overlapping sentence. To succeed he must show that the sentence imposed is so unreasonable or plainly unjust in the circumstances as to give rise to an inference that the discretion has miscarried. See R v Ikin [2007] QCA 224 at page 6 and Hili v The Queen (2010) 242 CLR 520 at paragraphs 58 to 60.

The factual circumstances of the offending were set out in a lengthy and detailed agreed statement of facts. He carried on the business of trafficking in multiple dangerous drugs, methylamphetamine, MDMA, cocaine and cannabis, over an 18 month period from February 2015 to August 2015, assisted by his then partner. The business spanned the eastern coast of Queensland, extending to Toowoomba as well, and involved the sale of wholesale, commercial quantities of drugs to the applicant’s customer base of about 30 drug dealers, who purchased drugs from him for on-sale to their own customers.

It was accepted by the learned sentencing judge that the applicant mainly trafficked in methylamphetamine over the 12 months from August 2015 to August 2016, but that he was also selling MDMA in wholesale quantities in the six months prior to that. He would purchase in bulk, up to half a kilogram of methylamphetamine, for tens of thousands of dollars, from suppliers on the Gold Coast, and then on-sell that to his customers. Although he occasionally sold smaller quantities, he primarily dealt in multiple ounces of methylamphetamine at a time.

One of the applicant’s primary distributors admitted to police he had sold kilos of methylamphetamine and thousands of MDMA pills sourced from the applicant; and that was only one of his customers. The applicant at times also sold cocaine in wholesale quantities, and also sold cannabis in substantial quantities. The business was profitable, demonstrated by his possession of numerous vehicles and motorbikes and significant quantities of…

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 Berns

Details

AGLC: R v Berns [2020] QCA 36
Case: [2020] QCA 36
Decision Date: 3 MARCH 2020

CaseChat Overview and Summary

In the case of The Queen v Berns, the applicant, Scott William Berns, sought leave to appeal against his sentence of 10 years imprisonment for the offence of trafficking in dangerous drugs. Berns pleaded guilty to this offence, along with 16 other offences related to drugs and weapons, as well as four summary charges. The appeal focused on the contention that the sentence imposed was manifestly excessive because the sentence did not give adequate weight to the mitigating factors, particularly his timely plea of guilty and the overlapping nature of the sentence with a previous imprisonment term for other drug-related offences.

The court examined the legal issues concerning the principles of totality and the appropriate weight to give to mitigating factors in sentencing. The court noted that while the principle of totality requires consideration of overlapping or cumulative sentences, it does not mandate a precise mathematical reduction of the sentence for the later offence. Instead, the court should impose a penalty that is just in all the circumstances, taking into account the overall criminality and the need to avoid a crushing sentence.

The court found that the sentence of 10 years for the trafficking offence was fair and reasonable. The sentencing judge appropriately considered the cumulative effect of the sentence on the overall time Berns would serve due to his earlier term of imprisonment by reducing the penalty to 10 years. The court held that the sentence adequately reflected Berns's plea of guilty and other mitigating factors. Consequently, the application for leave to appeal was refused.

The final orders of the court were that the application for leave to appeal is refused, affirming the sentence imposed by the original sentencing judge.

Orders