R v Chinmaya

[2009] QCA 227

SUPREME COURT OF QUEENSLAND

CITATION:

R v Chinmaya [2009] QCA 227

PARTIES:

R
v
CHINMAYA, Shivananda
(applicant)

FILE NO/S:

CA No 121 of 2009
SC No 25 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

Orders delivered ex tempore on 17 July 2009
Reasons delivered on 7 August 2009

DELIVERED AT:

Brisbane

HEARING DATE:

17 July 2009

JUDGES:

McMurdo P, Fraser JA and Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 17 July 2009

1.   Application granted.

2.   Appeal allowed.

3.   Sentence is varied so the applicant is released on parole immediately.

4.   Sentence otherwise confirmed.

5.   Applicant released on parole pursuant to s 200(1) Corrective Services Act 2006 (Qld).

6.   Applicant required to report to probation and parole officer as required under the Act between 9am – 5pm today or on the next business day.

7.   If the applicant fails to do so, he will be unlawfully at large.

8.   Legal representatives have undertaken to inform the applicant of his obligations to report under s 160G(5) Penalties and Sentences Act 1992 (Qld).

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted of one count of possession of methylamphetamine and one count of possession of MDMA in excess of two grams – where applicant sentenced to concurrent terms of 12 months imprisonment, with parole after three months – where applicant was sentenced on the basis that he had the drugs in his ‘possession’ under s 57(c) Drugs Misuse Act 1986 (Qld) – where sentencing judge sentenced the applicant on the basis that he had used methylamphetamine whilst working as a security officer – whether the sentencing judge erred in sentencing the applicant on this basis – whether sentence manifestly excessive

Drugs Misuse Act 1986 (Qld), s 129(1)(c)

R v Holmes[2008] QCA 259, cited

R v Kitson[2008] QCA 86, cited
R v Nguyen and Truong [1995] 2 Qd R 285; [1994] QCA 389, followed
R v Phan [2008] 2 Qd R 485, [2008] QCA 258, cited
R v Sartori[2006] QCA 284, distinguished

Tabe v The Queen (2005) 225 CLR 418; [2005] HCA 59, considered

COUNSEL:

C Heaton for the applicant
P F Rutledge for the respondent

SOLICITORS:

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

1. McMURDO P: I agree with Fraser JA.

1. FRASER JA: On 26 May 2009 the applicant was convicted on his pleas of guilty of possession of the dangerous drug methylamphetamine and possession of the dangerous drug 3,4-methylenedioxymethamphetamine (“MDMA”) with a circumstance of aggravation that the quantity of that dangerous drug exceeded 2.0 grams.  The learned sentencing judge recorded convictions and sentenced the applicant to concurrent terms of imprisonment of 12 months, with a parole release date on 26 August…