R v Dalton - [2002] QCA 108

[2002] QCA 108

COURT OF APPEAL

DAVIES JA
MUIR J
WILSON J

CA No 296 of 2001

THE QUEEN

MARTIN WILLIAM DALTON Applicant

BRISBANE

..DATE 21/03/2002

JUDGMENT

WILSON J: This is an application for leave to appeal against sentence. The applicant pleaded guilty and was sentenced on seven counts of offences against the Drugs Misuse Act. They consisted of one count of trafficking in methylamphetamine and cocaine between 8 February and 26 March 1999; four counts of the supply of methylamphetamine on 9 February, 18 February, again on 18 February and 5 March 1999; one count of the supply of amphetamine and methylamphetamine on 11 February 1999 and one count of the supply of cocaine and methylamphetamine on 25 March 1999.

He was sentenced on 15 October 2001 to five years' imprisonment to be suspended after 18 months with an operational period of five years.

It should be noted at the outset that these offences were committed at the time when amphetamines and methylamphetamines were schedule 2 drugs. It was, nevertheless, a time when there was an increasing community awareness of the harm that those drugs can do. However, because the offences were committed before the rescheduling, he had to be sentenced having regard to the sentencing regime which then applied. But it can reasonably be expected that as cases come before the Courts of offences committed after the rescheduling, the level of penalty will rise.

The applicant is seeking leave to appeal on the ground that the sentence was manifestly excessive. It is submitted that there was an error in the Judge's determining that he had no discretion to impose a wholly suspended term because authority dictated an actual term of imprisonment. It is further submitted that there was an error in failing to give any weight or sufficient weight to mitigating factors and, further, that the sentence imposed was outside the appropriate range.

The applicant was born on 21 November 1969, so that he was 29 at the time of the offences. He had a very minor criminal history. In August 1988, more than 10 years previously, he had been dealt with in a Magistrates Court for possession of marijuana and possession of a utensil. That resulted in probation for one year.

After these offences were committed, he was dealt with in a Magistrates Court for one charge of possession of heroin. He was given probation for 12 months and no conviction was recorded. He was also subsequently dealt with for an offence against the Bail Act.

Turning to the circumstances of the offences in question, the drugs were supplied to two undercover police operatives over a six-week period. In all, there were 3.565 grams of pure methylamphetamine, 0.029 grams of amphetamine, and 0.562 grams of cocaine. Moneys totalling $4,640 passed hands. There were six individual supplies for amounts ranging between $360 and $1,300. On two of those occasions, the methylamphetamine had a high level of purity, 38.5 per cent and 39.8 per cent.

The applicant was…

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 Dalton

Details

AGLC: R v Dalton [2002] QCA 108
Case: [2002] QCA 108
Decision Date: 21 March 2002

CaseChat Overview and Summary

The applicant, Martin William Dalton, was convicted of various drug-related offences under the Drugs Misuse Act and was sentenced to five years' imprisonment, suspended after 18 months. He applied for leave to appeal against the sentence on the basis that it was manifestly excessive. The offences in question involved the trafficking and supply of methylamphetamine, cocaine, amphetamine, and other drugs to undercover police officers over a period of six weeks. The primary legal issue before the Court was whether the sentence imposed was manifestly excessive and if the sentencing judge had erred in determining that a wholly suspended term was not appropriate.

The Court examined several precedents to assess the appropriate range of sentences for similar drug-related offences. It concluded that while the offences were serious, the sentence imposed was excessive, particularly in light of the applicant's limited criminal history, his young age at the time of the offences, and the fact that he was a minor participant in the drug trafficking operation. The Court held that the sentencing judge erred in determining that the authorities dictated a custodial term and in failing to adequately consider the mitigating factors.

The Court granted leave to appeal, set aside the original sentence, and substituted a sentence of three years' imprisonment suspended after 12 months with an operational period of three years, to be served only on the trafficking charge. The Court noted that the sentences on the supply charges were elements of the trafficking and thus should not have been separately imposed. The final orders were that the applicant's sentence be varied as per the Court's decision.

Orders