R v Chinmaya

Case [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…

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Details
AGLC
R v Chinmaya [2009] QCA 227
Case
[2009] QCA 227
Decision Date

CaseChat Overview and Summary

The applicant, Chinmaya, appealed against his sentence, arguing that it was excessive. He was convicted of possession of methylamphetamine and possession of MDMA in excess of two grams. The trial judge sentenced him to concurrent terms of 12 months imprisonment, with parole eligibility after three months. The appeal centred on whether the trial judge erred in sentencing the applicant based on his use of methylamphetamine while working as a security officer and whether the sentence was manifestly excessive.

The court considered the principles governing appeals against sentence, particularly whether the sentence was manifestly excessive or inadequate. The applicant's legal team argued that the trial judge's reliance on the applicant's drug use at work was inappropriate and that the sentence was excessive. The court agreed that the trial judge's consideration of the applicant's drug use was not a relevant factor for sentencing under section 57(c) of the Drugs Misuse Act 1986 (Qld). Furthermore, the court found the sentence to be manifestly excessive given the circumstances of the case.

The court allowed the appeal and varied the sentence so that the applicant is released on parole immediately. The court confirmed the sentence in all other respects and directed that the applicant report to a probation and parole officer as required under the Corrective Services Act 2006 (Qld) between 9am and 5pm on the same day or the next business day. Failure to report would render the applicant unlawfully at large. The applicant's legal representatives undertook to inform him of his obligations under the Penalties and Sentences Act 1992 (Qld).

Orders

Orders of the court

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).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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